2019 Statelessness & Citizenship Review 1(1) While the Refugee Convention might not give stateless persons a right not to be returned to their home country, 174 this might be the case under the nonrefoulement principle as a customary rule, which is also applicable to non-refugees (also known as ‘complementary protection’). In general, the non-refoulement principle is violated where an individual is returned to serious harm. 175 It appears dispensable to argue on the applicability of the non-refoulement principle when there is no territory to which host states could send former inhabitants back. Host states, however, might be restricted by the principle of nonrefoulement to return former islanders to territories that have not fully vanished, when sending them back might put their lives at risk due, for example, to scarce resources or a constant threat of sea floods. Especially considering that the European Court of Human Rights has recognised that where the applicant suffers from poverty or a lack of resources, housing/employment or medical care, it is ‘only’ in exceptional circumstances that the host state may not return the applicant. 176 For instance, this is the case when a terminally ill person’s life expectancy would be reduced significantly upon return. 177 In essence, ‘the humanitarian grounds against the removal’ must be ‘compelling’. 178 Thus, the non-refoulement principle might become applicable in situations where former 174 This will essentially hinge on the question whether a former islander is consider a refugee 175 176 177 178 under art 1A(2) of the 1951 Refugee Convention. If considered falling under art 1A(2), a former islander may not be expelled under art 33(1), unless [2] is applicable (if the refugee is ‘a danger to the security’ or ‘community of the country’). Please note that asylum-seekers may also enjoy protection under art 33. See also Goodwin-Gill and McAdam (n 170) 232–34. See also the formulation in Soering v United Kingdom (European Court of Human Rights, Chamber, Application No 14038/88, 7 July 1989) with regard to the non-refoulement principle implicit in art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953): ‘where substantial grounds have been shown for believing that the person, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting state’: at [91]. It must be noted that, theoretically, any human rights violation may give rise to the non-refoulement principle. However, where relative rights are concerned, states are permitted to balance their public interests against the interests of the individual concerned; McAdam, Climate Change, Forced Migration (n 29) 53, 81; Moreover, in the case of non-refoulement, the obligation to protect lies on the receiving country: see McAdam, ‘Climate Change Displacement and International Law’ (n 168). In these cases, the feared harm was naturally occurring and the receiving state could not be held responsible for it. See especially the most cited case in this context, D v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 30240/96, 2 May 1997) where the Court held in [54]: However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3. The Court held in this case that the expulsion of a terminally ill man suffering from AIDS to St Kitts, where he could not receive adequate care for his illness, was in violation of art 3. See also N v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 26565/05, 27 May 2008) (‘N v United Kingdom’) (no violation); Paposhvili v Belgium (European Court of Human Rights, Grand Chamber, Application No. 41738/10, 13 December 2016) (‘Paposhvili v Belgium’) (violation). See also Goodwin-Gill and McAdam (n 170) 315; Matthew Scott, ‘Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights’ (2014) 26(3) International Journal of Refugee Law 404, 413. Paposhvili v Belgium (n 176) [183]. See also McAdam, Climate Change, Forced Migration (n 29) 81–82. It must be noted that persons fleeing from submerging territories will generally not be critically ill. However, sending them back to these territories could potentially result in the reduction of their life expectancies. N v United Kingdom (n 176) [42]. 66