the State in which they reside, as long as the effects of these laws or regulations
are to take place within its own borders only. For example, a State can unilaterally
decide to grant a certain number of scholarships to meritorious foreign students
who wish to pursue their studies in the universities of that State.
However, when a law is specifically directed at foreigners residing in a foreign
country and the effects of this law are to take place abroad, the State of residence of the individuals concerned should be consulted. In this regard, a distinction should be made between situations in which the consent of the State
affected is implied, namely in the fields covered by treaties or international customs, and those in which consent should be explicit (Section D.a.i. of the Venice
Commission Report).
Peace, stability and friendly relations between States require that the State of
residence does not obstruct the receipt or enjoyment of benefits as long as
they comply with international law and standards. These provide that benefits
should be non-discriminatory, i.e. they should pursue a legitimate aim and be
proportionate.
As set out in the Venice Commission Report, a legitimate aim can be the fostering of cultural links between the target population and the population of the
“kin-State”. The promotion of educational or personal links could also constitute
a legitimate aim. Benefits extended by States therefore may include cultural and
educational opportunities, travel benefits, work permits, facilitated access to visas
and acquisition of property.
The enjoyment of such benefits is frequently made conditional on the possession
of identity documents issued by the “kin-State”. These documents should only be
a proof of entitlement to the services provided for under a specified law or regulation. They should not aim at establishing a political bond between its holder and
the “kin-State” and should not substitute for an identity document issued by the
authorities of the State of residence.
To be non-discriminatory, preferential treatment must target and affect persons
in the same circumstances equally. This requires that the impact of measures
granting preferential benefits to certain foreigners is proportionate, i.e. the least
limiting on the formal equal treatment of all persons belonging to the same category. For example, as pointed out in the Venice Commission report, differential
Recommendations on National Minorities in Inter-State Relations
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