Il ruolo dell'autodeterminazione collettiva nella giustificazione teoretica dei diritti di uno stato su un territorio specifico

What grounds a state’s jurisdictional rights over a particular territory? The problem of identifying a particular territory over which the state can exercise its jurisdiction has been tackled by all the most popular theories of territory including Lockean and functionalist theories. I argue that Lockean theories are well-equipped to satisfy the so-called “particularity requirement”, but at the same time they are not convincing for the fact of treating territory like property and territorial rights like property rights. Therefore, I prefer to argue in favour of functionalist theories, particularly in the latest and hybrid version advanced by Anna Stilz. Some convincing elements of her theory are the following: that individuals have a right to occupy the territory where they have located life plans, that there is a pre-institutional right to live in a certain area, that a state has a right to rule a territory and a population provided that it respects some basic criteria of justice, and that the constitution of “the people” is endogenous to existing institutions. Stilz’s theory, however, is affected by a great problem: how is it possible to move from individual occupancy rights to state-level territorial rights? Stilz’s functionalist theory suffers of “over inclusiveness” and it seems inadequate to respect the “particularity requirement”. As a possible solution, Stilz invokes the concept of “collective self-determination”, in respect of whom I am critical in several senses. The problems with the concept of “group self-determination” are many. The first is that it is difficult to justify the passage from an individual right (occupancy) to a group right (collective self-determination). Stilz does not justify or explain this passage in any way. The same problem might be viewed from the following perspective: it is difficult to define the “self” (and I show it presenting the “regress argument” by Sir Ivor Jennings). The second is an inherent difficulty to describe what a “group right” is and how it functions, especially when the group membership is involuntary (partners in a coffee shop are not like members of a modern state). I will distinguish between a “corporate” and a “collective” conception of groups and group rights, showing that in both cases Stilz’s theory of collective self-determination would not be entirely consistent with her functionalist assumptions and with the value of personal autonomy that she defends. Then, I look at the principle of collective self-determination as a synonym of “collective autonomy” (“political autonomy”, in Stilz’s words) and of “positive liberty”: interpreted in this way, collective self-determination carries with it the risk of authoritarianism or paternalism. I also show that the same difficulties apply to theories of self-determination different from the one defended by Stilz: voluntarist and nationalist accounts (particularly, Margaret Moore’s value-individualism and Miller’s nationalism). How to save Stilz’s conception of territorial sovereignty without resorting to the notion of self-determination and without encountering the problem of “over inclusiveness” faced by pure functionalist theories? I believe that states should be (potentially) as large as possible with three main constraints: efficiency, non-aggression and respect for a kind of Lockean proviso whereby a state would be entitled to enlarge only as long as it embeds a quantity of natural resources compatible with an equal share of the global resources with the other states.