2021 Statelessness & Citizenship Review 3(2) LLIS’s population and the loss of that state’s statehood would effectively render useless the law on statelessness, since EDPs would only qualify for the legal protection of the statelessness regime long after they had been displaced. While this premise is mostly taken for granted, some scholars have also raised doubts concerning the bases of this assumption. 1 Statehood While a scenario-based approach lowers the threshold needed for an outcome to be worth discussing from ‘likely’ to ‘plausible’, the current state of legal research on the statehood question is insufficient to allow us to actually delineate this threshold with sufficient certainty as to remove it from the equation. Examining critically the arguments brought forward in Part III(A) in support of continued statehood beyond deterritorialisation will allow for a better understanding of the uncertainty involved, and the corollary need to investigate alternative scenarios. The highly political nature of statehood and the substantial unpredictability that this implies mean that it may be premature to assume that the claim to deterritorialised statehood of a LLIS would not face any opposition or legal challenges, particularly in light of the legal arguments that can be brought to bear against those in favour of continued statehood. The first argument raised in the mainstream narrative of deterritorialised statehood concerns the irrelevance, inadequacy or sheer obsolescence of the traditional account of statehood, embodied by the criteria found in art 1 of the Montevideo Convention. Indeed, demonstrating the lacunae of the Montevideo Convention’s definition of statehood is not a particularly challenging endeavour. However, two elements seem to have been either overlooked or downplayed hitherto. First, the status of the Montevideo criteria. While Thomas D Grant argues that the Montevideo Convention itself was at best ‘soft law’,56 it is commonly accepted as reflective of international custom.57 Thus, it would seem premature to dismiss altogether the criteria it sets without engaging with their content and application in state practice. Second, while the Montevideo Convention’s criteria can be described as a ‘minimum threshold’ of statehood,58 it remains unclear where exactly this threshold lies. The criteria it sets out have been thoroughly discussed, as have their respective implications for the future of LLISs. However, little attention has been given to their relative weight in the context of the broader relevance and status of the Montevideo Convention’s definition. Practically, this means that the different arguments weighing against a stricter application of the traditional account of statehood to the future of LLISs have been rooted in dismissing the criteria collectively rather than on a more detailed scrutiny of their specific individual weight and significance. Namely, this has resulted in the need for a territory and a population being dismissed based on, among other arguments, the considerable flexibility of state practice on the need for a government.59 56 57 58 59 Thomas D Grant, ‘Defining Statehood: The Montevideo Convention and Its Discontents’ (1999) 37(2) Columbia Journal of Transnational Law 403, 456. Jain (n 19) 17; McAdam, ‘Forced Migration’ (n 6) 128. Willcox (n 20) 3. The precedent set by state practice on fragile states such as Congo in 1960 and Somalia in the 1990s and early 2000s is often invoked to illustrate this point: see, eg, Kittel (n 26) 1226–27; Willcox (n 20) 7; Ross, ‘Low-Lying States’ (n 21) 150–51. 298