Rising Statelessness Due to Disappearing Island States is arguable that stateless persons might be considered as refugees if they merely prove to be ‘unable to return’ to their country of former habitual residence without being persecuted per se. 169 Heather Alexander and Jonathan Simon have argued that such inability to return must be understood as ‘irreparable, fundamental inability, rather than mere difficulty of complication with the paperwork’.170 However, many recognise that stateless persons shall not be treated any different to refugees (so-called ‘single test’ for refugee status). Although it is undeniable that the wording of art 1A(2) seems ambiguous with regard to the requirement of persecution for persons lacking a nationality, it is thus generally accepted that both the unwillingness, as well as the inability to return to the country of former habitual residence, must be based on a well-founded fear of being persecuted on Convention grounds. 171 To conclude, it would be unconvincing to argue that a stateless person fleeing due to disappearing island states would fall under the refugee definition in art 1A(2), if no other circumstances which would give rise to ‘well-founded fear’, arose. Again, it would be desirable to achieve some international consensus on this issue. Sweden and Finland explicitly recognise ecological migrants under certain, but strict, circumstances as ‘persons otherwise in need of protection’. 172 For instance, former islanders fleeing to Sweden might succeed in applying for protection on the grounds of ‘a person otherwise in need of protection’, if not already considered as refugees (nor persons requiring subsidiary protection). 173 169 See generally Heather Alexander and Jonathan Simon, ‘“Unable to Return” in the 1951 170 171 172 173 Refugee Convention: Stateless Refugees and Climate Change’ (2014) 26(3) Florida Journal of International Law 531. ibid 532–33: Alexander and Simon make a convincing point when arguing that where a strict test is applied to the inability to return, an application of refugee status without persecution is justifiable. In the author’s opinion, however, the scholars neglect a discussion whether ‘is unable or, owing to such fear, is unwilling to return to it’ could by way of textual interpretation be read as requiring persecution for the inability and the unwillingness to return, respectively. Zimmermann and Mahler (n 168) 463 [685]–[686]; Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press 2007) 69–70. See also Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted [2004] OJ L 304/12, art 2(c). See Aliens Act 2005 (Sweden) ch 4, s 2(a), which considers a ‘person otherwise in need of protection’ is someone who ‘is an alien who in cases other than those referred to in Section 1 is outside the country of the alien’s nationality, because he or she […] 3) is unable to return to the country of origin because of an environmental disaster’. See also Hélène Ragheboom, The International Legal Status and Protection of Environmentally-Displaced Persons: A European Perspective (Brill Nijhoff 2017) 352. Ragheboom (n 172) 352; New Zealand and Australia have also not recognised ‘ecological refugees’ yet (for the relevant case law see n 168); McAdam, ‘Emerging New Zealand Jurisprudence’ (n 168). However, please note Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment (n 168), where the Supreme Court of New Zealand held at [13]: That said, we note that both the Tribunal and the High Court, emphasised their decisions did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction. Our decision in this case should not be taken as ruling out that possibility in an appropriate case. 65