This article is an opinion piece whose contents represent the standpoint of its author and not UPF Lund or The Perspective’s editorial board. It was originally published in The Perspective Magazine in June 2026.
On 2 September 2015, the image of three-year-old Alan Kurdi’s lifeless body, washed ashore on a Turkish beach, shocked the world. The Syrian child had drowned alongside his mother and brother while attempting to reach safety in Europe. For a moment, the photograph seemed to awaken global conscience and reignite concern. Yet, more than a decade later, such tragedies remain far from exceptional. Thousands of migrants, including children fleeing war and persecution, continue to undertake dangerous sea journeys, often with fatal consequences. While international law imposes a clear duty to rescue those in distress at sea, states simultaneously pursue policies aimed at preventing migrant smuggling and irregular entry. This creates a fundamental tension: the same legal framework that obliges rescue may also discourage it.
Over half of all documented migrant deaths are attributed to drowning (Image Credit: Nadin Sh | Pexels)
The legal obligation to assist persons in danger at sea is one of the most established norms in international law, originating from centuries of customary maritime practice. This duty is codified in three primary instruments: the United Nations Convention on the Law of the Sea (UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS), and the International Convention on Maritime Search and Rescue (SAR Convention).
This rule is not abstract. It applies in real situations. If a commercial cargo ship or guard vessel encounters a sinking rubber boat in the Mediterranean, the captain is legally obliged to stop and help regardless of their reason for being at sea. Saving lives is not optional; it is a fundamental principle of maritime law.
In practice, however, the legal clarity surrounding rescue quickly dissolves once individuals have been brought aboard a vessel. Imagine a rescue vessel picking up 100 migrants from a sinking boat off the coast of Libya. Where should it go next? Italy? Malta? Tunisia? What if those states refuse entry? What if the migrants request asylum? International law provides limited guidance on what happens next. Questions regarding where rescued migrants should be taken and which state bears responsibility for receiving them remain contested. As a result, states frequently engage in disputes over disembarkation, delaying or avoiding responsibility altogether. This lack of coordination weakens the effectiveness of the search and rescue regime and creates uncertainty for those involved in life-saving operations.
“Something is rotten in the state of Denmark”
This situation has been described as a ‘maritime legal black hole’. Although rights formally exist, including the duty to rescue, the right to seek asylum, and protections under human rights law, their enforcement is uneven and at times illusory. At sea, far from public scrutiny and clear jurisdictional frameworks, migrants exist in a space of legal uncertainty and limited protection. In this sense, to borrow from William Shakespeare, “something is rotten in the state of Denmark”; individuals at sea may formally possess rights under international law; however, these rights are practically and at times legally meaningless.
Running parallel to these humanitarian obligations is a legal framework designed to combat migrant smuggling. At the international level, the Protocol against the Smuggling of Migrants defines smuggling as facilitating illegal entry for financial or material benefit. Within the European Union, however, the Facilitators’ Package adopts a broader approach, criminalising facilitation without requiring proof of financial gain, thereby lowering the threshold for criminal liability.
The Commission’s 2023 proposal seeks to update this framework but arguably deepens its flaws. While it incorporates a reference to financial benefit, it does so in very broad terms, criminalising conduct if a benefit is merely ‘promised’ or ‘expected’, regardless of whether it is actually obtained or accepted. It also introduces a new offence based on a ‘high likelihood of causing serious harm’, even without profit. This ‘securitised approach’ views the migrant not as a victim, but as a participant in an illegal border crossing, prioritising border control over the humanitarian essence of SAR.
In practice, the line between smuggling and humanitarian assistance is blurred. Rescue operations conducted by NGOs, or even by private vessels, may be interpreted as facilitating irregular entry, especially when migrants are brought to European shores. As a result, actors engaged in life-saving activities have faced investigations, sanctions, and prosecution.
The same act of rescuing people from drowning can be both required by law and punished under it.
Irish Naval personnel from the LÉ Eithne (P31) rescuing migrants as part of Operation Triton (Author: Irish Defence Forces | Wikimedia Commons | CC-BY-2.0)
This collision has created a hostile environment for humanitarian actors. Since 2016, over sixty legal procedures have been opened against SAR NGOs in countries such as Greece, Italy, and Spain. As of 2022, 18 of the 25 primary NGO rescue vessels in the Mediterranean had faced investigations.
The result is a legal paradox: the same act of rescuing people from drowning can be both required by law and punished under it.
This contradiction creates powerful disincentives. NGOs risk legal consequences, while private vessels may face delays or difficulties disembarking migrants. Unsurprisingly, this affects behaviour. When rescue becomes legally and politically complicated, fewer actors intervene, making the Mediterranean even more dangerous. The Mediterranean, already one of the world’s deadliest migration routes, becomes even more dangerous.
States also respond to these incentives. Coastal countries such as Italy and Greece often bear the primary responsibility for receiving rescued migrants. Once ashore, migrants may claim asylum, triggering legal and political challenges. While not all asylum claims are successful, the immediate responsibility of housing, processing, and potentially integrating migrants falls on the receiving state.
Without effective responsibility sharing across the EU, these states face disproportionate pressure. The result is a system that quietly encourages the prevention of arrival rather than the facilitation of rescue.
For migrants, the consequences are severe. Without safe and legal pathways into the European Union, migrants are left with little choice but to rely on smuggling networks undermining both the effectiveness of anti-smuggling laws and the humanitarian objectives of SAR. When rescue operations are reduced, the risk of death increases. Those who are rescued may find themselves stranded at sea, caught between legal obligations and political reluctance.
Despite promises of reform, the contradictions remain
The tragedy is not that the law is absent. On the contrary, there is an abundance of legal rules governing rescue, migration, and smuggling. The problem is that these rules pull in different directions. One demands that lives be saved; another seeks to prevent entry. Together, they create a system where doing the right thing carries legal risk, and avoiding responsibility appears rational.
Nearly a decade after Alan Kurdi’s death, the image remains a symbol not only of human suffering, but of legal and political failure. Despite promises of reform, the contradictions remain. Children continue to drown, rescue ships continue to face obstacles, and states continue to struggle or refuse to share responsibility.
This is not a failure of law’s existence, but of its design. A framework that punishes rescue, delays disembarkation, and avoids responsibility cannot credibly claim to uphold its humanitarian foundations. If the international community is serious about preventing future tragedies, it must confront this contradiction directly by protecting rescuers, clarifying obligations after rescue, and ensuring genuine responsibility-sharing between states.
Otherwise, the next image that shocks the world will not be a surprise. It will be the predictable outcome of a system that has already accepted its own failure.
By Ismail Ali
October 1, 2026
