ITAR : RACIAL AND ETHNIC DISCRIMINATION IN EMPLOYMENT IN CANADA'S AEROSPACE AND DEFENSE INDUSTRY
Serwaah Frimpong and Charlotte Cheong
Policy Research Interns, October 2012
The U.S. State Department's International Traffic in Arms Regulations (ITAR) require Canadian aerospace and defense companies recognized as Premier U.S. Defense Contractors and receiving military contracts from the U.S., and recruitment agencies working with these companies, to adhere to regulations that restrict access to ITAR-controlled products, services and data to applicants and employees from these “prohibited countries.”
ITAR applies to those who hold dual nationalities, are Canadian permanent residents or are Canadian citizens, regardless of how long they have held either status, and international applicants, who were born in 28 embargoed countries deemed to be hostile to the United States such as China, Cuba, Haiti, Iran, Lebanon, Pakistan, Sri Lanka and Vietnam (for a list of these countries, visit http://www.pmddtc.state.gov/embargoed_countries/index.html).
Under these ITAR rules, persons holding nationality from the country of their employer (i.e. Canada), while also holding nationality from one or more of the proscribed countries as listed above, are referred to as “dual-country nationals”. Individuals not holding nationality from the country of their employer are referred to as “third-country nationals”. If one falls under either category, one may be subject to employment discrimination based on one's ethnic or national origin.
The Canadian government has advocated for a solution to ITAR that emphasizes security, rather than nationality or ethnicity. According to the August 2011 amendment, nationality in itself is theoretically and officially not a sufficient condition for ITAR restrictions. Instead, employees must be screened for “substantive contacts” in any of the prohibited countries. These “substantive contacts” include:
1. Regular travel to the prohibited countries;
2. Recent or continuing contact with agents, brokers and nationals of those countries;
3. Continued demonstrated allegiance to those countries;
4. Maintenance of business relationships with persons from those countries;
5. Maintenance of a residence in those countries;
6. Receiving salary or other continuing monetary compensation from those countries;
7. Acts otherwise indicating a risk of diversion.
In theory, only persons holding “substantive contacts” in any of the proscribed 28 countries are subject to its restrictive provisions. In practice, however, candidates who do not have “substantive contacts” but who were born in any of those countries, despite holding Canadian citizenship or permanent residence status, can still be denied employment, training and apprenticeship. This also means that even if one has acquired an internship or a job with a company, one can later be denied employment and promotion, demoted or even terminated.
For more country specific information on ITAR: http://www.pmddtc.state.gov/embargoed_countries/index.html
Public Works and Government Services Canada:
ITAR : A NEW FORM OF RACISM CHALLENGES CANADIANS' SOVEREIGNTY AND CIVIL RIGHTS
Fo Niemi, Executive Director,
Center for Research-Action on Race Relations
(edited by Leila Jawando, December 2007)
It is widely accepted that the first decade of the 21st century has created a new global post-industrial economy that requires a fundamental redefinition of the notions of nation-state and interdependence. Free trade agreements and information and transport technologies lead to unprecedented movement of knowledge, goods and services, and inevitably, people. Combined with the continuing warfare and terrorist activities in many parts of the world, these worldwide transformations require new strategies and actions to address tensions and conflicts arising out of racial, religious and cultural diversity in all societies.
As a leading western democracy, post 9-11 Canada is now facing new and unexpected race relations challenges that go to the core of its national sovereignty and basic citizenship rights. One such challenge is particularly tied to its geopolitical, social and technological position as a multicultural, immigration-based and post-industrial society in North America.
In recent years, Canada's aerospace industry (not to mention trucking and seaway transport industries), which is heavily dependent on American contracts, has become subject to the International Traffic in Arms Regulations (ITAR) of the U.S. State Department. ITAR requires Canadian private companies that receive defense contracts from the U.S. Government or companies in that country, to comply with security measures that require them to deny access of data, products, services, and employment to their own employees if those employees are Canadian citizens and permanent residents who were born in countries deemed to be threats to American national security. These “proscribed countries” include: China, Cuba, Haiti, Iran, Iraq, Lebanon, Libya, Somalia, Syria, Venezuela and Vietnam, to name a few.
Due to ITAR, Canadian engineers, technicians and other office and clerical workers who work in Canada's leading aerospace companies and their subsidiaries, are now subject to practices involving segregation, displacement, interdiction and increased surveillance on the job because of their place of birth.
In addition, students in engineering and aerospace technical training who were born in those “proscribed countries” may be hard pressed to find internship positions to complete their degrees because of ITAR. Facing the risks of losing lucrative contracts as well as complicated administrative procedures for clearance and exemption that can only be done in the United States, Canadian employers may be less and less likely to hire these graduates.
Indeed, the ITAR have the effect of subjecting Canada's citizens and permanent residents to foreign-imposed racial discrimination and profiling practices that are reminiscent of the treatment of Canada of its own Japanese Canadian citizens during the Second World War. Consequently, entire classes of Canadian citizens and permanent residents are being made into economic “enemy aliens” in their own country.
Obviously, the ITAR are direct and intentional challenges to Canadian citizenship, employment, multiculturalism and civil rights laws since almost all individuals affected are members of visible minorities as defined by Canada's federal Employment Equity Act (EEA). Furthermore, many companies in Quebec and Ontario, where the aerospace industry is vibrant, are recipients of federally approved contracts and bound by the Federal Contractors Program to ensure compliance with the federal employment equity policy. Some companies are squarely subject to the EEA. In addition, the federal Strategy for a Racism-Free Workplace, which is an essential component of the Government's 2005 National Action Plan against Racism, also extends to these companies.
Since defense contracts are worth billions of dollars and are crucial to Canadian jobs, neither government nor companies and unions in the affected industries have said much about the discrimination imposed on their workers. In this regard, the ITAR are reminiscent of legalized practices in Canada before the adoption of the 1960 Bill of Rights that made freedom of commerce prevail over human rights. The only difference today is that this discriminatory commercial contract requirement originates from another country that is also winning in its imposition of its own security conditions on the integrated North American market. The ITAR are contemporary evidence that human rights end where free trade begins when there are thousands of jobs at stake.
ITAR is much more than a new form of racism of the post 9-11 global economy. It is also a direct test of Canada's national sovereignty, border controls and citizenship rights, much like other new American security measures such as requirements of visas and passports for Canadian visitors to enter the United States, and the “no-fly” list that can expressly profile Canadians of certain racial, ethnic or religious backgrounds. The fact that on these other issues, Canada has not been able to successfully affirm its position with the United States, points to the fact that the country may not be able to withstand the legal, economic and social intrusion of the ITAR.
Indeed, ITAR invite questions as to the positive duty of the Government of Canada to act to uphold not only constitutionalized rights guaranteed in the Canadian Charter of Rights and Freedoms, but also, specific provisions of major international instruments in civil, political and human rights which Canada has rafitied since the late 1960s. Left uncontested, the rigid application of ITAR will have the effect of contradicting or even nullifying most public policies and discourses on immigrant integration, full citizen participation and diversity as an added value of our economy.
ITAR also raises questions about Canada's unions and their legal, social and economic obligations towards workers of colour, civil rights and national sovereignty. Historically the natural leaders in national movements to protect and promote these values, trade unions are presently confronted with a new challenge over which a certain lack of political assertiveness ultimately reveals a clear absence of concern for minority workers' rights, or rather, greater concern for majority workers' job conditions. The fact that most union executives have persistently failed to reflect their members' racial and ethnocultural diversity may add political weight to legal claims of failure of fair representation or systemic racism in labour relations.
In the past, Canada has faced serious human rights challenges in international trade and cooperation initiatives, in which agreements with foreign governments and companies subjected Canadians' fundamental civil rights to jeopardy. A case in point is a telecommunications company's contract with a Middle-Eastern, predominantly Muslim country in which it was expressly stipulated that no person of Jewish faith could be part of the work to be performed in Canada.
ITAR, on the contrary, allow foreign-imposed discrimination to occur on Canadian soil and set a precedent as well as a new test for racial equality in our country. They point to the need for more legal and economic research on the relationships between international trade contracts and domestic civil rights and on the implications for Canadian citizenship, and particularly, for minority workers.
In addition, comparative analyses between protectionist trade policies and racially exclusionary rules of 20th-century Canada and those of present-day Canada under ITAR would help to shed further light on, among other things, the fundamental inconsistencies in our national policies in citizenship, civil rights, and foreign relations or national defense.
ITAR open a new Pandora's box of racism. But the fact that they are only a signal of the things to come in an increasingly shrunken but deeply unequal global village calls for urgent new actions in Canada against this new, but not last, threat to our values and laws.
To review CRARR interventions on ITAR-related race/ethnicity based discrimination, go to the News section.