European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria iii. International Law When it comes to the international law, views are divided on whether a national has a legally enforceable right to receive consular assistance or merely a legitimate expectation. 327 Under a restrictive and traditional view, nationals abroad have no individual right to receive consular assistance or bring a claim against their State of nationality, based on the understanding that the provision of such assistance is at that State’s discretion. However, understanding that international law and the rules that govern it are living instruments that evolve with time, this view has been challenged on the grounds that customary international law establishes a responsibility of States to provide consular assistance to their nationals detained abroad; moreover there is an emerging recognition of the access to consular assistance as a human right. 328 That consular assistance is considered an indispensable aspect of the fair trial rights of detainees abroad329 suggests that it is emerging as a human right under customary international law. The recognition of access to consular assistance as an individual right is primarily based on Article 36(b)(1) of VCCR, which specifies the information and legal assistance that can be provided by the consulate for the benefit of a national. A similar right has also been highlighted in the UN Standard Minimum Rules for the Treatment of Prisoners, which states that “prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they 327 Francesca Capone, “Is Trump Right? Foreign Fighters and the States’ Obligation to Repatriate Them,” Verfassungs Blog, 10 March 2019. 328 The Special Rapporteur on extrajudicial, summary or arbitrary executions, “Report on the Application of the Death Penalty to Foreign Nationals and the Provision of Consular Assistance by the Home State” A/74/318, 2019. See also: David P. Stewart, “The Emergent Human Right to Consular Notification, Access and Assistance”, 2020. Note also while there are fundamental differences between diplomatic protection and consular assistance, the doctrinal origins of the right to consular access lie in the theory of state responsibility and diplomatic protection. The historical premise on which the diplomatic protection was based is that it is the State that is injured as a result of a prejudice to a person of its nationality. This regime has evolved over time and now it is widely accepted that the individuals may have their own rights under international law and the States may invoke responsibility for the violations of their citizens’ rights through diplomatic protection. This evolution should also shed light to the nature of the individuals’ right to consular assistance. See e.g. ILC, “The Report of the International Law Commission on the Work of its 58th Session A/61/10, Chapter IV (2006): Draft Articles on Diplomatic Protection and Commentaries, adopted by the ILC on Second Reading”, Commentary to Article 3, p. 28, para. 3. First report on diplomatic protection, by Mr. John R. Dugard, Special Rapporteur, U.N. Doc. A/CN.4/506 and Add. 1 (Apr. 20, 2000). 329 David P. Stewart, “The Emergent Human Right to Consular Notification, Access and Assistance”, p. 451. 58