Significantly, the United States had intended to enter into such a relationship from early on. In an agreement executed in connection with the liberation of the Philippines, the two countries expressed their intent to form an FCN:
The two contracting parties mutually agree that they will forthwith enter into negotiations for the conclusion of treaties and agreements regulating relations between the two countries, including a treaty of friendship, commerce, and navigation, an executive agreement relating to trade, a general relations treaty, a consular convention, and other treaties and agreements as may be necessary, and will endeavor to conclude these instruments as soon as may be possible.
Provisional Agreement Concerning Friendly Relations and Diplomatic and Consular Representation art. IV (executed July 4, 1946). Given the special relationship between the United States and the Republic of the Philippines over the course of many decades, it is not unsurprising that the parties never executed a single, all-encompassing FCN at one single time.
Moreover, citizens of the Philippines hired by PAL for U.S. positions falling under Article 8(2) of the ATA are treated as employees of an FCN/treaty-trader nation under the immigration laws. Specifically, these individuals are covered by E-1 treaty trader visas, which are granted to persons defined as "an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national." 29 U.S.C. § 1101(a)(15)(E) (emphasis added). Therefore, the United States has implicitly, if not in fact explicitly, granted full FCN/treaty-trader status to the ATA between the United States and the Republic of the Philippines.
Based on both the original intent of the parties, as expressed in the Provisional Agreement executed in 1946 and the language of the ATA, and the status given to Filipino citizens of PAL under U.S. immigration laws, the Court is fully persuaded that the ATA has clearly achieved treaty status, if not in fact status as an FCN. Therefore the above authorities discussing the effect of Title VII on FCNs are fully relevant and applicable to the present case.
Secondly, the Court finds that the absence of the words "of their choice" in Article 8(2) of the ATA does not deprive that agreement of FCN status. The language of 8(2) provides that defendant may "bring in and maintain" those key employees "required" for the conduct of PAL's business in the United States. The determination of who is in fact "required" to ensure efficient and effective administration of PAL's U.S. operations undoubtedly lies within the discretion of PAL itself. Therefore the Court finds that the clear meaning of Article 8(2) sufficiently parallels that of similar provisions in formal FCN agreements, even in the absence of the words "of their choice."
Finally, plaintiffs rely on two cases, one from the EEOC and one from the Fifth Circuit, to support their position. In Foreign Airline Subject to Ban on National Origin Bias,  EEOC Decisions (CCH) para. 6866 (Apr. 25, 1986), a case involving identical language to that in the present ATA, the EEOC held that the plain meaning of the subject Protocol's requirement that appointment of key managerial positions be made "in accordance with the laws and regulations relating to entry, residence and employment of the other Party" was that each party must obey the employment laws of the other while operating in each other's territory. Id. at 7101. Thus the foreign employer was subject to the proscriptions of Title VII. That decision, however, is not binding on this Court. Moreover, the EEOC did not fully consider the particular status given to management of airlines, especially those which are owned in major part by the sovereign state itself.
Finally, plaintiffs rely on Airline Pilots Ass'n. Int'l v. TACA Int'l Airlines, S.A., 748 F.2d 965 (5th Cir. 1984), cert. denied, 471 U.S. 1100 (1985), which involved an ATA between El Salvador and the United States containing language identical to the present. There the Fifth Circuit held that neither the ATA nor the "act of state" doctrine allowed defendant to unilaterally move its pilot base from New Orleans to El Salvador -- thereby abrogating any existing collective bargaining unit with the pilots' union as Salvadoran law prohibits such union representation -- even though such move was in order to comply with the provisions of a newly adopted Salvadoran constitution. Significantly, prior to the negotiation of the ATA, the Fifth Circuit had already ruled previously on this same issue in the same case (although the move at that time was merely pursuant to the wishes of TACA rather than a constitutional mandate), holding that a unilateral move of this sort would violate the Railway Labor Act, 45 U.S.C. §§ 151-188. Ruby v. TACA Int'l Airlines, S.A., 439 F.2d 1359 (5th Cir. 1971). In examining the language of and circumstances preceding the ATA subsequently reached, the Fifth Circuit concluded it was apparent that "the representatives of the United States and El Salvador did not intend a suspension of the application of the Railway Labor Act or an abrogation of the holding of Ruby v. Taca." Taca, 748 F.2d at 969.
In the present case, there is no such history of prior judicial rulings between the United States and PAL comparable to that in TACA. Moreover, TACA itself did not deal with Title VII, but only the duties of an employer with regard to its unionized employees to recognize the union representing them. Therefore the Court is not persuaded by either of the cases plaintiffs' rely on. Instead, the Court finds that the ATA between the United States and the Philippines permits PAL to prefer its citizens to key positions falling under Article 8(2) of the ATA without implicating the national origin provisions of Title VII. Thus defendant is entitled to partial summary judgment on this claim.
For the foregoing reasons, defendant's motion for partial summary judgment is GRANTED on its claim under Article 8(2) of the ATA that defendant's preference for its own citizens in key positions does not violate either Title VII or the FEHA, and on any of plaintiffs' claims based on assignment of employees to positions outside the United States.
A status conference in this matter is hereby scheduled for Wednesday, November 13, 1991, at 9:00 a.m. Parties are directed to file a status conference statement prior to that date in accordance with the rules of this Court.
IT IS SO ORDERED.
DATED: August 23, 1991.
D. Lowell Jensen
United States District Judge