U.S. Requires National Origin Discrimination

Simon Rice (Macquarie University Law Division) explains:

Contracts for the export of defence technology from the USA are subject to US laws that prevent the disclosure of the technology to a person whose nationality is not of the USA or the contracting party.  This is said in US Federal Regulations to be "in furtherance of world peace and the security and foreign policy of the United States".  Australian defence manufacturers are party to such contracts.  To comply with contracts and US law, the Australian manufacturers are obliged to discriminate against their employees on the ground of their nationality.  Australian provincial laws proscribe discrimination in employment on the ground of nationality (as an aspect of 'race'), giving effect to Australia's non-discrimination obligations under ICCPR, ICESCR and CERD.  The US has not ratified ICCPR and ICESCR, and has entered a reservation for CERD with respect to private conduct.  The Australian manufacturers have obtained exemptions from anti-discrimination laws in Australia, ostensibly on a 'public interest' ground.  This allows them to comply with the contracts by discriminating among their employees on the ground of race, badging their employees according to their nationality.

Of the many issues that are raised (eg, illegal conduct required by contract; grounds for exempting conduct from anti-discrimination law), this paper invite discussion of whether a state's claimed defence interest a sufficient justification -in fact and in international law - for imposing a condition on private conduct that requires a breach of both the law and the human rights obligations of another state.

I had no idea that U.S. law has this effect.  I hope this article does indeed "invite discussion" of whether U.S. law should be changed.  As it stands now, as Professor Rice points out, the “US has effectively coopted Australia companies and the Australian court system to the protection of its security interests, at the expense of Australia’s compliance with its international human right obligations.”

Professor Rice's article, Discriminating for Peace, is available on SSRN.

rb