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People Out of Place
Globalization, Human Rights, and the Citizenship Gap
13487FM.pgs 12/15/03 11:59 AM Page viii
People Out of Place
Globalization, Human Rights, and the Citizenship Gap

Alison Brysk and Gershon Shafir, Editors

NEW YORK AND LONDON

13487FM.pgs 12/18/03 2:48 PM Page iv

Published in 2004 by
Routledge
29 West 35th Street
New York, NY 10001
www.routledge-ny.com

Published in Great Britain by

Routledge
11 New Fetter Lane
London EC4P 4EE
www.routledge.co.uk

Copyright © 2004 by Taylor and Francis Books, Inc.

Routledge is an imprint of the Taylor and Francis Group.

This edition published in the Taylor & Francis e-Library, 2003.

All rights reserved. No part of this book may be printed or utilized in any form or by any
electronic, mechanical or other means, now known or hereafter invented, including
photocopying and recording, or any other information storage or retrieval system, without
permission in writing from the publisher.

Library of Congress Cataloging-in-Publication Data

People out of place : globalization, human rights, and the citizenship

gap / Alison Brysk and Gershon Shafir, editors.
p. cm.
Includes bibliographical references and index.
ISBN 0-415-93584-9 (HC : alk. paper) -- ISBN 0-415-93585-7 (PB : alk.
paper)
1. Citizenship. 2. Human rights. 3. Globalization--Social aspects.
4. Globalization--Political aspects. I. Brysk, Alison, 1960- II.
Shafir, Gershon.
JF801.P43 2004
323--dc22
2003015085
ISBN 0-203-42044-6 Master e-book ISBN

ISBN 0-203-68090-1 (Adobe eReader Format)

13487FM.pgs 12/15/03 11:59 AM Page v

Contents

Acknowledgments vii

Part I. Framework
1 Introduction: Globalization and the Citizenship Gap 3
ALISON BRYSK and GERSHON SHAFIR

2 Citizenship and Human Rights in an Era of Globalization 11

GERSHON SHAFIR

Part II. Producing Citizenship

3 Constituting Political Community: Globalization, 29
Citizenship, and Human Rights
RONNIE D. LIPSCHUTZ

4 Latitudes of Citizenship: Membership, Meaning, 53

and Multiculturalism
AIHWA ONG

Part III. Constructing Rights

5 Agency on a Global Scale: Rules, Rights, and the 73
European Union
DAVID JACOBSON and GALYA BENARIEH RUFFER

6 Mandated Membership, Diluted Identity: Citizenship, 87

Globalization, and International Law
PETER J. SPIRO

Part IV. Globalizing the Citizenship Gap

7 Deflated Citizenship: Labor Rights in a Global Era 109
GAY W. SEIDMAN

8 Globalized Social Reproduction: Women Migrants 131

and the Citizenship Gap
KRISTEN HILL MAHER

9 Children across Borders: Patrimony, Property, or Persons? 153

ALISON BRYSK

v
13487FM.pgs 12/15/03 11:59 AM Page vi

vi • Contents

Part V. Reconstructing Citizenship

10 Citizenship and Globalism: Markets, Empire, and Terrorism 177
RICHARD FALK

11 The Repositioning of Citizenship 191

SASKIA SASSEN

12 Conclusion: Globalizing Citizenship? 209

ALISON BRYSK and GERSHON SHAFIR

Bibliography 217
List of Contributors 235
Index 239
13487FM.pgs 12/15/03 11:59 AM Page vii

Acknowledgments

We are grateful to all of this project’s participants and supporters. A generous

grant from the University of California’s Institute for Global Conflict and Co-
operation, through its director, Peter Cowhey, enabled us to host two work-
shops that provided the basis for this book. The October 2001 workshop was
hosted by UCSD’s sociology department, and attended by Nina Berkovitch,
David Jacobson, Ronnie Lipschutz, Aihwa Ong, and Peter Spiro. Invaluable lo-
gistical assistance was provided by UCI doctoral student Sharon Lean and
UCSD Ph.D. candidate Caroline Lee. The second workshop, in April 2002, also
took place at UCSD. Richard Falk, Kristen Maher, and Gay Seidman presented,
while UCSD’s John Skrentny provided insightful commentary. Saskia Sassen
defied geographic challenges to contribute to this book. Sociology student
Grischa Metlay assisted greatly in the preparation of the book manuscript.
Professor Tom Farer and two peer reviewers from Routledge gave constructive
and incisive suggestions for revision. Our editor at Routledge, Eric Nelson, en-
couraged and guided this project from its inception. Many thanks to Human
Rights Quarterly for permission to reprint a revised version of Jacobson and
Ruffer’s chapter. Both of us acknowledge most of all our families, the people
who help us to find our place. To all of these, we owe gratitude for their contri-
butions, and apologies for any remaining flaws.

Jacobson, David and Gayla Benarieh Ruffer, Courts Across Borders: The Implications of Judicial
Agency for Human Rights and Democracy. Human Rights Quarterly 25:1 (2003), Excerpts from
pp. 74–92. © The Johns Hopkins University Press. Reprinted with permission of The Johns Hop-
kins University Press.

vii
13487FM.pgs 12/15/03 11:59 AM Page viii
13487C01.pgs 12/15/03 11:58 AM Page 1

I
Framework
13487C01.pgs 12/15/03 11:58 AM Page 2
13487C01.pgs 12/15/03 11:58 AM Page 3

1
Introduction
Globalization and the Citizenship Gap
ALISON BRYSK AND GERSHON SHAFIR

Citizenship is a mechanism for allocating rights and claims through political

membership. In the past two centuries or so, citizenship has been nested in
nation-states. Globalization is a package of transnational flows—of people,
production, investment, information, ideas, and authority. As exchange inten-
sifies across borders, such globalization changes the nature of citizenship.
Globalization has put some flows out of the reach of states, putting rights at
risk, but also created new levels of membership and rights claims. Among the
changes it has wrought, globalization coincides with a universal, deterritorial-
ized, and postnational human rights regime.
We critically analyze the interaction of two traditions of rights: citizenship
and human rights. While citizenship has come to signify full membership in
the polity on the basis of broad claims and entitlements, human rights are
more universal in coverage but encompass a more modest set of rights and
are institutionally less settled. This book will consider how globalization has
created a “citizenship gap” (Brysk 2002), which puts noncitizens and “second-
class citizens” at risk. We will discuss the key concepts of citizenship, human
rights, and globalization, the nature of the citizenship gap, and our approach
to analyzing—and reducing or closing—the gap.
In an era of globalization, how do these traditions affect the provision
of rights in response to global migration, markets, and transnational ties?
How do these flows affect the state—the site of citizenship—in its ability to
sustain existing citizenship rights and provide new forms of membership?
How does globalization affect those most marginalized by the state—second-
class citizens—and how does it impact noncitizens who fall between the
cracks of a state-based membership system? This book is an attempt to address
those questions. Finally, we will ask what steps would be necessary to provide
citizenship on a global scale?
Though we identify citizenship with the nation-state, its origins are an-
cient. They lay in the Greek polis as privileged participatory membership in
the polity. In between the polis and the modern national state, citizenship has
been transformed and overlaid with new content through its association with

3
13487C01.pgs 12/15/03 11:58 AM Page 4

4 • Alison Brysk and Gershon Shafir

the Roman imperial framework and the medieval city-states. Social struggle in
modern industrial society often took the form of, or was diverted to, aspira-
tions for equal citizenship. Whereas in antiquity citizenship was most clearly
associated with military service, even with freedom from laboring, nowadays
many of the rights of citizenship are accessed through labor market partici-
pation. Modern struggles, either through the mobilization of trade unions,
workers’ parties, and social movements or through preemptive concessions,
led to the extension of citizenship to workers and later to women and minori-
ties. Eventually, this led to the expansion of citizenship rights themselves,
spanning from civil through political and social rights and now, perhaps, to
cultural ones as well. Though citizenship rights are now universally accorded,
they are available only to members of political communities of limited size
and particular characteristics, leaving out those devoid of membership.
While it is customary to point to the Magna Carta and the English or
American Bill of Rights as early human rights documents, the recipients of
these rights were privileged and members of specific political communities
(Orend 2002: 101–6). Only with the universalization of rights—that is, with
the endowment of individuals with rights by virtue of their common
humanity—does an alternative tradition, that of human rights, commence. Its
legacy is derived from natural law and is associated with the Enlightenment’s
individualistic and anti-hierarchical perspective, and finds its first clear ex-
pression in the French Revolution’s constitutive document, the Declaration of
the Rights of Man and Citizen, though here the two rights traditions appear
interlinked. Since the Second World War, and in an accelerated fashion in the
globalizing decade of the 1990s, human rights have been gaining on citizen-
ship as the main purveyor of rights (Leary 1999). This ongoing transition from
citizenship rights to human rights is partial. Even as the political framework
within which these rights are exercised seems to be changing again, this time
becoming transnational or global, the sovereign nation-state still remains the
primary institution that administers and enforces rights, even those conceived
to be universally held (Soysal 1994; Shafir 1998).
Citizenship has evolved into a full complement of rights, as T. H. Marshall
first argued (1963). Human rights have not yet developed such coherence, and
their social and especially political dimensions are being intensely questioned
and debated. Universal human rights (as was citizenship earlier) were first
laid down in regard to a small number of civil rights. But will they be arrested
there, or will they follow the evolution of modern citizenship, which com-
menced in the eighteenth century with civil citizenship, to be followed by
political and social rights (and recently, in some cases, by a modicum of
group-based cultural rights), all of which ensure effective implementation of
an earlier layer of civic citizenship?
At the same time, the universalism of human rights promises more than
nation-state citizenship. Implicitly, and sometimes explicitly, it suggests not
13487C01.pgs 12/15/03 11:58 AM Page 5

Introduction • 5

only the possibility of an international order, which a well-ordered state sover-

eignty system also promises, but a global community. But the enforcement of
human rights has suffered from the lack of robust institutional underpinning.
Modern state institutions have been among the most effective enforcers and
enablers of citizenship rights (Tilly 1996), but even human rights accords rely
on the very same states they call into question to enforce those accords.
One important consequence of the link between citizenship and state sov-
ereignty is the state’s determination regarding the interpretation and enforce-
ment of citizenship. Different states, and different types of states, historically
have held distinct standards for membership, based on combinations of birth,
descent or blood, residence, identity, achievement, and even characteristics of
migrants’ states of origin. Globalization intensifies the impact of these dispari-
ties and the numbers of people in dual or overlapping status, at the same time
as it pressures states to harmonize their standards with international norms.
Globalization is a new concept that was developed with the expectation that
a new world economic, political, and cultural order was emerging. While this
hope has been frequently overstated, for our project the central question is
which elements of the era of globalization impact citizenship and how?
What are the crucial elements of the era of globalization? In Barrie Axford’s
opinion (1995), globalization is the very defining concept of our age, while Paul
Hirst and Grahame Thompson (1996) find that claims for both its centrality
and its novelty have been exaggerated. While some analysts treat globalization
as a predominantly economic process of commodification or the spread of
global capitalism (Greider 1997; Korten 1995), others focus on the growth
of international institutions and organizations; that is, on cosmopolitanism
(Ruggie 1998; Meyer et al. 1997). Some scholars emphasize the impact of
transnational demographic, environmental, and cultural connections (Sassen
1996), while others plot the emergence of cross-border networks and commu-
nication that may constitute a “global civil society” (Lipschutz 1996; Wapner
1996; Castells 1997) or a Western cultural hegemony (Latouche 1996). Global-
ization is all this and more, and it would be a mistake to claim to exhaust the
meaning of globalization with one favored element.
The underlying dynamic of globalization is cosmopolitan: it is a simultane-
ous but increasingly differentiated growth of world markets, interstate institu-
tions, and global civil society and norms (Brysk 2000). While this process is
catalyzed by U.S. hegemony, the dynamic, once unleashed, has diverse conse-
quences. Thus, while the political economy of hegemony dictates an unequal
distribution of resources among and within states and a general weakening of
state citizenship, the resulting dynamic is more complex: power is moving
from weak states to strong states, from states to markets, and away from state
authority entirely in certain domains and functions (Strange 1998).
We hold that the current wave of globalization does surpass previous
eras in the breadth, scope, and intensity of the combination of connection,
13487C01.pgs 12/15/03 11:58 AM Page 6

6 • Alison Brysk and Gershon Shafir

cosmopolitanism, commodification, and communication. Connection is a

functional parameter of globalization, involving increasing numbers, vol-
umes, and salience of transnational flows of bodies, business, and informa-
tion, as well as norms. The cosmopolitan dimension is structural and implies
the evolution of multiple, linked, and overlapping centers of power above and
below the state. Commodification highlights the distinctive characteristics of
expanding world markets. The underlying causal dynamic that catalyzed and
intensified each of these dimensions of the current wave of globalization is
enhanced communication (Brysk 2002). The process of communication cre-
ates and strengthens transnational social networks of various kinds, while the
content of communication introduces new norms—including rights—which
facilitate but also structure and sometimes constrain the process of globaliza-
tion altogether. Globalization creates a citizenship gap, but also furthers the
import and spread of the rights that potentially may close the gap.
The first characteristic manifestation of the citizenship gap is the growing
number of residents in increasing numbers of states who are noncitizens (or am-
biguous citizens), whose lives are subject to global markets and mobility without
secure membership in a national community. Migrants, refugees, and undocu-
mented residents all lack basic membership in the state; certain ethnic groups,
rural residents, and laborers are often granted a lesser, conditional, or ambigu-
ous status. This means that they may be ineligible for rights of political partici-
pation, social services, and sometimes even international recognition of their
status. Their presence in a specific locale is often a result of the current globaliza-
tion, and the difficulties of meeting their needs also flow from factors such as
global patterns of investment, international immigration law, and transborder
community ties. Today more than 25 million people are international refugees.
Tens of millions more are international economic migrants—mostly undocu-
mented and generally lacking civil rights (Mills 1998: 97–124). In China alone,
an estimated 100 million people are unregistered domestic migrant workers
(Solinger 1995). Women governed by “family law”—which frequently directly
denies full citizenship or nationality, and generally violates international human
rights standards (Chinkin 1999)—are doubly disadvantaged as migrants: they
may lack permission to migrate unaccompanied, be tied to their husband’s
status or nationality, or lose status in the host state. Within many countries, in-
ternally displaced persons, rural-urban migrants, and isolated peasants (often
illiterate) are also undocumented, and also lack rights and civil status.
But formal, legal citizens are also at risk from the deflation of citizenship
rights by global influences. Welfare entitlements are removed at the behest
of international lenders, labor rights are curtailed, and trade agreements are
concluded with little or no citizen participation. The lives of more and more
legal citizens depend on distant decisions over which they cannot exert effec-
tive political influence. Institutions such as the WTO and regional trade
accords may displace local and national institutions formerly subject to citizen
13487C01.pgs 12/15/03 11:58 AM Page 7

Introduction • 7

debate, leaving citizens at the mercy of unaccountable global managers. The

uneveness of regional integration further adds to the deepening of the divide
between residents of richly institutionalized regions such as Europe, which
thereby gain a new layer of rights and protections, and their poorer cousins,
cut adrift by thinning states and cast aside by wobbly and depoliticized
regional bodies. Even within global institutions seeking to enhance citizen
participation and control, residents of rich and powerful states are overrepre-
sented; thus their national citizenship transfers more readily to decisions and
debates at the global level.
Second-class citizens historically granted lower rights of membership—the
informal sector, women, children, ethnic minorities, and sometimes labor—
also suffer from globalization. Overall, there are ample signs of the thinning of
citizenship rights. Frequently, the state becomes divided between local and
global institutional factions, with some agencies, such as central banks and
supreme courts, supporting globalization, while others, like legislatures, op-
pose it. Observers of states undergoing not only economic but also political
liberalization decry the emergence of “low-intensity citizenship” (Stahler-
Sholk 1994).
Yet globalization also creates new opportunities and multiple venues in
which to claim rights in other states and global institutions. Kosovars can
claim accountability from Slobodan Milosevic at the Hague, while Rwandan
victims of genocide could potentially approach courts in their own state,
Belgium, the United States, or the International Tribunal in Tanzania. Export-
zone laborers denied social rights in Mexico could seek relief through appeals
to a NAFTA labor panel, a transnational boycott with U.S. activists, cross-
border union organizing with the U.S. or Central America, or complaints to
the International Labor Organization.
Attention to human rights is accompanied by the judicialization of interna-
tional relations and the spread of liberal legal norms of the right of judicial
review, a greater autonomy given to courts, and constitutional expansion as
well as the enforcement of long dormant international conventions of human
rights, greater enforcement of punishment for crimes against humanity, and
the creation of an international criminal court. While participatory citizen-
ship seems to decline, NGOs and networks represent a new activist thrust with
a clear global dimension, sometimes referred to as “globalization from below.”
Civil society organizations have the potential to restore political participa-
tion, but in the process they may be transferring the effective arena of debate
from national elections and competition for individual voters to a “new
aristocracy” of global activists. Furthermore, these new opportunities tend to
propose new rights without the membership or responsibility provided by
citizenship. New mechanisms do not sufficiently address the range of rights
deflated by globalization, and they are often less available to those most
excluded by their own states. We would like to analyze the global impact of
13487C01.pgs 12/15/03 11:58 AM Page 8

8 • Alison Brysk and Gershon Shafir

legal liberalism and the balance between “citizenship deficit,” due to the con-
traction of political democracy, and “citizenship surplus,” created by new
venues of political influence.
In this volume we will, finally, inquire how far human rights are likely to
evolve as a distinct tradition apart from citizenship, and, whether thick human
rights can become a reality without turning into global citizenship, namely
becoming embedded in global governance and its institutions.

Our Analysis
The chapter that follows, by Gershon Shafir, will trace some of the stops along
the way in the historical evolution of citizenship and human rights, in order to
provide a background and context for measuring globalization’s effects on cit-
izenship rights. This section concludes that globalizing rights are superceding
territorial citizenship, but without providing the defined membership, institu-
tional accountability, or social aspirations of the citizenship construct.
The next section, “Producing Citizenship,” argues in different ways that the
economic aspects of globalization determine the shape and scope of citizen-
ship rights. Ronnie D. Lipschutz contends that globalization, as the highest
stage of Lockean liberalism, constitutes a political space that inherently limits
our ability to construct meaningful political community. Aihwa Ong analyzes
a different dynamic: the construction of citizenship packages across national
states, in accordance with the requirements of globalized relations of produc-
tion. For Ong, globalization is what pushes people out of place (physically and
socially), while for Lipschutz, liberalism denies everyone a place.
In the third section, “Constructing Rights,” contributors focus on the insti-
tutional and normative aspects of globalization. Both of these chapters show
that international law and understandings produce new rights for people out
of place—migrants and aliens. David Jacobson and Galya Benarieh Ruffer
argue that globalization has generated international institutions, norms, and
models of “agency”—individual capacity to contest rights on the basis of
rules. They show that this transnational judicialization can be gauged in the
hard case of migrants, who can assert rights despite their lack of citizenship.
Peter J. Spiro’s contribution focuses on conflicts over citizenship and national-
ity generated by migration. His analysis of international law shows an increas-
ing influence of international treaties and norms even on states’ ultimate
prerogative of allocating citizenship rights, which increasingly favor the indi-
vidual over the collective.
Next, we directly consider the contradictory impacts of globalization on
vulnerable sectors of people out of place. Gay W. Seidman analyzes the defla-
tion of social citizenship rights for labor movements in response to global
market pressures, and the shifting political role of labor in democratizing but
underdeveloped states. Kristen Hill Maher’s essay shows how women migrants
are excluded from public citizenship at home and abroad, and isolated from
13487C01.pgs 12/15/03 11:58 AM Page 9

Introduction • 9

transnational rights. Alison Brysk treats a case of double displacement—

children possessing ambiguous citizenship who are also migrants. In this case,
economic migration generates effects like those seen by Ong and Lipschutz,
but refugee status brings in a debate on rights, while a third type of identity-
based movement—adoption—reconstructs citizenship across state lines. Thus,
we return to the issues of globalizing norms, not just of rights but of identities.
In the concluding section of the book, Richard Falk lays out the alternative
models of global citizenship that may supplement—or eventually supplant—
the nation-state tradition. His analysis shows how the reemergence of geopoli-
tics as a factor in globalization may limit the potential of transnational rights
and norms. Saskia Sassen rethinks the shifting domain of citizenship, and at
the same time returns citizenship to its roots—the city—reconstructed across
borders. Overall, we hope to establish a better understanding of the sources,
reach, and remedies of the citizenship gap. In this way, our project may con-
tribute to the study and amelioration of globalization.
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