Directive 51

In all likelihood, the past month will be remembered as a turning point in the European migration drama. Germany has effectively suspended Dublin II, the EU treaty that compels asylum seekers to register in the first European country in which they arrive, for Syrian refugees. Meanwhile, it has pledged not to cap the number of refugees it accepts, daring other European countries to step up.

Across Europe, Germany’s sudden openhandedness is outmatched only by that of the wider public, from football clubs to private citizens, who have given millions of euros’ worth of food, clothing, and shelter. For these people, one image has come to symbolize the crisis: the photograph of a three-year-old boy, Aylan Kurdi, slumped lifeless in the Turkish surf. It was both shocking and familiar. For years, the public has absorbed reports of refugees dying in overcrowded, barely seaworthy boats launched across the Mediterranean Sea.

And such images—regardless of civilian solidarity, renegotiation of quotas, or even a comprehensive suspension of Dublin II—will continue to pour in. People-smugglers will still charge thousands of dollars to pack desperate migrants on rickety boats. This is because the main reason that migrants choose boats, EU Directive 51/2001/EC, is not up for amendment or, at this point, even for debate.

The EU directive was passed in 2001. Put simply, it states that carrier companies—whether airlines or ship lines—are responsible for ensuring that foreign nationals wishing to travel to the European Union have valid travel documents for their destination. If such travelers arrive in the EU and are turned away, the airlines are obligated to foot the bill for flying them home. The airlines can also be penalized between 3,000 and 5,000 euros per infraction. To avoid the fines, airlines have become diligent about preventing anyone without the proper passports or visas from getting on their planes.

Aimed at combatting illegal immigration, the directive does seem to make an exception for asylum seekers: “the application of this Directive,” runs Clause 3, “is without