Month: February 2012

APPEALS COURT TOSSES ARMENIAN PAYMENTS LAW
PAUL ELIAS

The Associated Press State & Local Wire
February 24, 2012 Friday 12:04 AM GMT

A federal appeals court on Thursday struck down a novel and
controversial California law that allowed descendants of 1.5 million
Armenians who perished in Turkey nearly a century ago to file claims
against life insurance companies accused of reneging on policies.

The move came when a specially convened 11-judge panel of the 9th
Circuit Court of Appeals unanimously tossed out a class action lawsuit
filed against Munich Re after two of its subsidiaries refused to
pay claims.

The ruling, written by Judge Susan Graber, Enhanced Coverage
LinkingJudge Susan Graber, -Search using:Biographies Plus NewsNews,
Most Recent 60 Dayssaid the California law trampled on U.S. foreign
policy the exclusive jurisdiction of the federal government.

The California Legislature labeled the Armenian deaths as genocide,
a term the Turkish government vehemently argued was wrongly applied
during a time of civil unrest in the country.

The court noted the issue is so fraught with politics that President
Obama studiously avoided using the word genocide during a commemorative
speech in April 2010 noting the Armenian deaths.

The tortured legal saga began in 2000 when the California Legislature
passed a law enabling Armenian heirs to file claims with insurance
companies for policies sold around the turn of the 20th century. It
gave the heirs until 2010 to file lawsuits over unpaid insurance
benefits.

New York Life and the French company AXA paid a combined $37.5 million
to settle lawsuits. But Munich Re chose to fight the litigation,
invoking a rare legal argument known as dormant foreign affairs
pre-emption.

The insurance giant argued the state Legislature had no business
weighing in on the issue, even though the United States had no clear
policy regarding the politically sensitive matter.

The 9th Circuit agreed.

“The existence of this general foreign affairs power implies that,
even when the federal government has taken no action on a particular
foreign policy issue, the state generally is not free to make its
own foreign policy on that subject,” Judge Graber wrote for the court.

It was the third time the 9th Circuit ruled on the case.

In 2009, a three-judge panel reversed a lower court’s decision and
tossed out the lawsuit. Then in December 2010, the same three-judge
panel did an about-face, changed its ruling and upheld the lower
court’s decision to allow the case to go forward.

The ruling Thursday could be the final word on the matter unless the
U.S. Supreme Court agrees to review the unanimous decision by the 11
appellate judges.

From: A. Papazian

ARMENIAN GENOCIDE SUIT TOSSED, AGAIN, IN LATEST CIRCUIT APPEARANCE
By TIM HULL

Courthouse News Service

Feb 24 2012

(CN) – A California law that allows state courts to hear insurance
claims by victims of the Armenian genocide cannot stand, a full panel
of the 9th Circuit ruled Thursday, finding that the statute intrudes
on policy territory reserved for the U.S. government.

The decision by an 11-judge panel in San Francisco sealed the fate of
a long-suffering class action for insurance benefits filed by survivors
of the World War I-era slaughter of more than 500,000 Armenians living
in the former Ottoman Empire. Turkey has resisted calling the killings
a genocide, and the issue is a politically touchy among its U.S. and
European allies in NATO.

California legislators passed a law in 2000 that gave victims until the
end of 2010 to file insurance claims related to the mass extermination
of Armenians in the Ottoman Empire between 1915 and 1923.

Referencing the little-used theory of “field preemption” or “dormant
foreign affairs preemption,” the judges found that section 354.4
of the law intrudes on the federal government’s exclusive right to
handle foreign affairs.

“The existence of this general foreign affairs power implies that, even
when the federal government has taken no action on a particular foreign
policy issue, the state generally is not free to make its own foreign
policy on that subject,” Judge Susan Graber wrote for the unanimous
panel. “Field preemption is a rarely invoked doctrine. Supreme Court
jurisprudence makes clear, however, that field preemption may be
appropriate when a state intrudes on a matter of foreign policy
with no real claim to be addressing an area of traditional state
responsibility.”

The ruling marks the third time the 9th Circuit has considered the
issue, and it reverses a previous panel’s revival of the underlying
class action last year.

Since 2003, Vazken Movsesian and other Californians of Armenian
descent have tried to use the law to win damages for bad faith,
breach of contract and constructive trust from two German insurers
owned by Munich Re.

A federal judge who first heard the case rejected the insurance
companies’ contention that the foreign affairs doctrine pre-empted
the state law, but a three-judge appellate panel reversed, finding
that it infringed on federal foreign policy. On rehearing, however,
the panel found “no express federal policy forbidding states to use
the term ‘Armenian genocide,'” and reversed.

The court then agreed to rehear the issue before a full panel.

That group reversed again and ordered dismissal of the class action
on Thursday.

“Section 354.4 expresses a distinct point of view on a specific matter
of foreign policy,” Graber wrote. “Its effect on foreign affairs is not
incidental; rather, section 354.4 is, at its heart, intended to send a
political message on an issue of foreign affairs by providing relief
and a friendly forum to a perceived class of foreign victims. Nor is
the statute merely expressive. Instead, the law imposes a concrete
policy of redress for ‘Armenian Genocide victim[s],’ subjecting foreign
insurance companies to suit in California by overriding forum-selection
provisions and greatly extending the statute of limitations for a
narrowly defined class of claims. Thus, section 354.4 ‘has a direct
impact upon foreign relations and may well adversely affect the power
of the central government to deal with those problems.’ Section 354.4
therefore intrudes on the federal government’s exclusive power to
conduct and regulate foreign affairs.”

The Armenian National Committee of America decried the ruling.

“This ruling opens the door for foreign governments to try to roll
back the clock on human rights, potentially putting at peril American
grassroots efforts – along the lines of the anti-Apartheid, Darfur
genocide, and Free Tibet movements – that so often start at the state
and local level, sometimes even against opposition at the federal
level, before winning broad acceptance by the American people and the
U.S. government,” the committee’s executive director, Aram Hamparian,
said in a statement. “Turkey has no right to hold all three branches
of the U.S. government hostage to its irrational and hateful denial
of the Armenian genocide, a crime that has already been broadly
recognized by American civil society and government, once by a U.S.

president, at least twice by the House of Representatives, 42 times by
separate U.S. states, and hundreds of times by municipal governments
in nearly every state of our union.”

ARMENIAN GENOCIDE VICTIMS’ SURVIVORS LOSE COURT FIGHT ON INSURANCE
By Carol J. Williams

Los Angeles Times
,0,5231502.story
Feb 24 2012

The 9th Circuit Court of Appeals says the survivors can’t sue German
insurers because only the U.S. government has that ability. The ruling
likely ends the effort launched by Southern Californians.

Survivors of Armenian genocide victims can’t sue German insurance
companies for failing to pay claims because only the federal government
can bring foreign entities to court, the U.S. 9th Circuit Court of
Appeals ruled Thursday.

The 11-judge panel dismissed the case brought nearly a decade ago
by Southern California Armenians, probably putting an end to their
efforts to compel the German companies to pay survivors’ benefits on
policies sold to victims between 1875 and 1923.

A 2000 revision to California’s Civil Code allowed California courts
to consider the Armenians’ insurance claims beyond the deadline
for petitioning for payouts by subsidiaries of the German insurance
company now known as Munich Re.

“The Constitution gives the federal government the exclusive authority
to administer foreign affairs,” the appeals court said in a unanimous
ruling. “Under the foreign affairs doctrine, state laws that intrude
on this exclusively federal power are preempted.”

The lawsuit against Munich Re was brought by Vazken Movsesian, an
Armenian priest in Glendale, on behalf of Armenians who sought damages
from the insurer for breach of contract. A federal district judge
declined to dismiss the case five years ago, a decision overturned
by a divided three-judge panel of the 9th Circuit in 2009, prompting
the full 11-judge review.

Thursday’s ruling said that even in matters in which the federal
government hasn’t formulated a policy, the state courts lack the
authority to address questions that can affect foreign relations. That
appeared to be a reference to Washington’s delicate balancing act on
Turkey, a republic that succeeded the Ottoman Empire. Turkey denies
that, in the empire’s final years, any genocide occurred.

The genocide dispute continues to flare almost a century after the
killings. Two years ago when the House Foreign Affairs Committee
narrowly passed a resolution to recognize the genocide, Turkey
recalled its ambassador from Washington in protest. The resolution
has languished in the Senate, as U.S. politicians seek to keep NATO
ally Turkey committed to sanctions against Iran.

A lawyer for the Armenian plaintiffs conceded that the 9th Circuit
ruling probably spelled the end of the pursuit of compensation for
the genocide victims’ descendants.

“The court says this is a field preemption, which means anything
that deals with this group of people is reserved for the federal
government,” said Lee Boyd, who argued the case for the Armenians
before the 9th Circuit in December.

Attorneys for the denied claimants will look for some avenue of
appeal “but it doesn’t look very promising,” Boyd said, noting the
unusual unanimity of the court and the U.S. Supreme Court’s refusal
to review similarly unsuccessful efforts to subject foreign entities
to state law.

From: Baghdasarian

CALIFORNIA ARMENIAN GENOCIDE LAW OVERTURNED
by Bob Egelko

San Francisco Chronicle

Feb 24 2012
CA

A California law allowing heirs of victims of the Armenian genocide to
sue in state courts for unpaid insurance benefits is invalid because
it intrudes into sensitive foreign policy questions that are the
exclusive domain of the federal government, a federal appeals court
ruled Thursday.

In an 11-0 decision that tiptoed around the use of the word “genocide,”
the Ninth U.S. Circuit Court of Appeals in San Francisco said the
law, passed in 2000, “establishes a particular foreign policy for
California” that exceeds any state’s authority.

The court ordered dismissal of a class-action suit filed in 2003 by
several hundred Armenian Americans against a German insurance group
and two subsidiaries. The ruling effectively kills all suits filed
under the law, since a lawyer for the plaintiffs, Lee Crawford Boyd,
said there’s little chance that the Supreme Court would agree to
review an appeal.

It was the latest in a series of federal rulings that have barred
California and other states from allowing victims of decades-old
foreign atrocities, like the Nazi Holocaust and the alleged use of
slave labor by the Japanese military, to seek redress in their courts.

As many as 1.5 million Armenians were killed in the Ottoman Empire
between 1915 and 1923. Most historians consider it a genocide, but
the Turkish government protests use of the term and has urged U.S.
administrations to prevent any endorsement by Congress.

President Obama, in annual speeches condemning the killings, has
refrained from describing them as a genocide. The Obama administration
took no position in the case.

The California law allows descendants of Armenians killed or deported
during that period, or of anyone who escaped to avoid persecution,
to sue insurers until 2016, long after the normal legal deadlines
would have expired.

A three-judge appeals court panel upheld the law in 2010, saying
it did not conflict with any explicit federal policy. But after the
full appeals court granted a rehearing, the 11-judge panel Thursday
said foreign affairs are an exclusive federal preserve, even if the
government has no defined policy on the subject.

California’s law was “intended to send a political message on an issue
of foreign affairs by providing (monetary) relief and a friendly
forum to a perceived class of foreign victims,” Judge Susan Graber
said in the ruling. She said the law “imposes the politically charged
label of ‘genocide’ ” – a term about which, she said in a footnote,
the court expresses no opinion.

Boyd, the plaintiffs’ lawyer, said the ruling was disappointing but
sent a strong message, along with other cases, that U.S. courts will
not permit such laws. In a dispute between private parties, with the
Obama administration voicing no objection, she said, “I think the fears
(of interfering with foreign policy) are overblown.”

Neil Postman, lawyer for German insurance company Munich Re, said the
court properly recognized that “the interests of the United States
as a whole are more important than the particular interests of any
small group.”

The ruling can be viewed at

Bob Egelko is a San Francisco Chronicle staff
writer. [email protected]

CIRCUIT SIDES WITH INSURER ON ARMENIAN GENOCIDE CLAIMS
Ginny LaRoe

Law.com

Feb 24 2012

SAN FRANCISCO – After three rounds at the Ninth Circuit U.S. Court
of Appeals, lawyers at Mayer Brown pulled off a full win for a German
insurer fighting claims by survivors of the Armenian Genocide.

A unanimous en banc opinion said the California law that allowed for
Armenian Genocide survivors to bring suit for certain insurance claims
is preempted under the foreign affairs doctrine.

“This disposes of all remaining claims,” said Neil Soltman, a Los
Angeles-based Mayer Brown partner who argued Movesian v. Munich,
07-56722, before the court three times. “If the Supreme Court doesn’t
take it, the case is over.”

Mayer Brown represents German Munich Re, the parent company of the
insurance companies in the suit. Nearly a decade ago, survivors of
Armenians killed or persecuted in the World War I era brought the
class action over payments on life insurance policies, claiming breach
of contract and unjust enrichment, among other things. California
passed a measure in 2000, California Code of Civil Procedure §354.4,
that allowed California courts to hear insurance claims by “Armenian
Genocide victims.”

The Ninth Circuit has grappled with the case for years. It issued
two panel opinions – one for the insurance company, another for the
plaintiffs after Senior Judge Dorothy Nelson changed her position –
before Thursday’s en banc ruling by Judge Susan Graber.

Her ruling relies on analysis in a 2003 U.S. Supreme Court decision
in another case handled by Soltman and Mayer Brown, Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396.

Graber wrote that it’s “clear that the real purpose of” the California
law is “to provide potential monetary relief and a friendly forum
for those who suffered from certain foreign events.” That’s the
same purpose held unconstitutional in Garamendi. However “laudable”
the goal may be, Graber wrote, it’s not an “area of traditional
state responsibility, therefore the statute is subject to a field
preemption analysis.”

Graber then determined that the law intrudes on the federal
government’s “exclusive power to conduct and regulate foreign affairs.”

Graber rejected plaintiffs’ argument that the California law
concerned an area of traditional state responsibility because it
regulated insurance. Kathryn Lee Boyd of Schwarcz, Rimberg, Boyd &
Rader in L.A., argued for plaintiffs.

The appeals court remanded with instructions to dismiss the claims.

Also on the panel were Judges Mary Schroeder, Stephen Reinhardt, Sidney
Thomas, Barry Silverman, Margaret McKeown, Raymond Fisher, Richard
Paez, Johnnie Rawlinson and Sandra Ikuta and Chief Judge Alex Kozinski.

WILL RUSSIA YIELD ON SYRIA?
Suren Grigoryan

Foreign Policy Journal

Feb 24 2012

Russia and China’s vetoes on the UN Security Council resolution
condemning Syrian government’s violent crackdown on opposition
and aimed at imposing greater international sanctions on Damascus
were largely viewed in the West, as well as in the Arab world, as a
critical obstacle for stopping the on-going bloodshed on the Syrian
streets. However, Russian Foreign Minister Sergey Lavrov’s subsequent
visit to Damascus (on February 7th) put Russia in a position of being
the Bashar al-Assad regime’s main protector and therefore welcomed
the lion’s share of international pressure and criticism. Since the
criticism and pressure are growing concurrently with increasing number
of civilian deaths and worsening humanitarian situation in Syria,
the question arises, will Russia change its position on Syrian issue?

I think the timing of Moscow’s activation on Syrian issue prompts the
answer to the question. By the time Russia’s Foreign Minister visited
Damascus, there was already enough ground to assume that the political
regime in Syria was steadily heading toward a Libyan scenario. Assad’s
denial to step down and transfer power to his deputy (a suggestion
included in the Arab League’s plan), his belated and perhaps idle
efforts aimed at reforming the country’s political system, and his
overt determination to stifle political opposition by military terror
had made his regime’s political future extremely questionable even
before Lavrov’s arrival to Damascus. It is hardly plausible that
Kremlin’s decision-makers have underestimated these factors when
backing Syrian regime vis-a-vis international (particularly Western)
community. Then what’s the point of standing behind the regime and
its leader who has crossed all possible red lines and is virtually
condemned to political fiasco?

Moscow’s move was aimed at gaining an additional “platform” for
bargaining with the West. Given the forthcoming presidential elections
in Russian Federation such occasion may appear quite soon. The mass
demonstrations against the candidacy of ruling party (United Russia)
candidate and incumbent Prime Minister, Vladimir Putin, that started
in December 2011 in Moscow revealed dissatisfaction by Putin’s planned
return within many segments of Russian society. Alarming numbers of
demonstrators proves that despite the affluence of administrative,
financial, media, and other resources that Russia’s ruling party
may employ for securing Putin’s victory, the latter’s ascendance
to power may be significantly thorny. Under these circumstances,
Russia’s ruling class may exclude neither undesirable outcome of
the elections nor post-election turbulence. If such problems arise,
Russia’s political regime will become extremely susceptible to Western
critique and even interference (whatever it implies), which in turn
may damage Putin’s team standing significantly.

Here, Moscow may use its position on the Syrian issue as a kind
of ruse for keeping the West, and particularly the United States,
away from Russia’s internal political “rumblings”. In other words,
Moscow apparently counts on yielding Syria to the West in return
to the latter’s non-interference to Russia’s pre- and post-election
political life. It is worth mentioning also that the urgency of Syrian
issue increases its bargaining value day by day.

Russian President Dmitry Medvedev (RIA Novosti / Sergey Guneev)
Hence, as election day in Russia comes closer, one may expect Moscow
to change its position in regard to the Syrian issue literally at
first convenient occasion to do so. According to the Russian daily
Nezavisimaya Gazeta, in November 2011, Russia’s President Medvedev
stated that if Bashal al-Assad is incapable of managing transformation
in his country, he has to leave. Thus Russia’s leader made clear that
Moscow is leaving the paths for Assad’s exit open, and may change
its position if needed.

As for China’s position on the same issue, it is unlikely that Beijing
will stand alone with the Syrian government once Russia leaves it. By
calling recently on the Syrian government and the country’s opposition
to halt acts of violence immediately, Chinese Vice Foreign Minister,
Mr. Zhai Jun, basically expressed Beijing’s obsession with the burden
it assumed by vetoing the UN resolution.

Thus, as violence in Syria intensifies and international concerns with
the situation in this country increases, one may expect revision of
Russia’s, and then China’s, position on dealing with Syrian crisis,
which will give way to greater international pressure on Syrian
government and possibly intervention.

Suren Grigoryan is a political analyst, who worked for the Ministry
of Defense of Armenia for more than 10 years. His experiences in
the Armenian armed forces range from commanding troops in the field
to advising the government on the legal aspects of international
military cooperation and defense policy formation. Concurrently,
he provided violence risk assessment in the CIS countries for the
London based Exclusive Analysis Company that forecasts commercially
relevant political and violent risks worldwide. He also taught graduate
course on Comparative Politics called “The Politics of Empire and
Post-Imperialism” at the Yerevan State Linguistic University of
Armenia. Suren has two Bachelor degrees. The first is in Law, the
second, is in military command and engineering. He earned his Master’s
degree (MSc) in Comparative Politics at the London School of Economics
and Political Science (United Kingdom). The area of Suren’s expertise
and interest is the politics of the Post-Soviet space and the Middle
East. Currently he resides in the US.

ITALIAN, ARMENIAN, COLOMBIAN, EU DIPLOMATS TO VISIT VIETNAM

VietNamNet Bridge

Feb 24 2012
Vietnam

VietNamNet Bridge – The Foreign Ministers of Armenia, Colombia
and Italy will pay official visits to Vietnam at the invitation of
Vietnamese Foreign Minister Pham Binh Minh.

Minister Edward Nalbandian of the Republic of Armenia will visit Hanoi
on February 24-25, Minister the Republic of Colombia on February 25-27,
and Minister Giulio Terzi Di San’Agata of Italy from February 29 to
March 1.

They will hold talks with FM Minh and meet with senior Vietnamese
leaders to discuss measures to strengthen bilateral cooperation in
various areas.

They will also touch upon regional and international issues of
mutual concern.

Meanwhile, David O’Sullivan, director general of the European
Commission’s External Relations, will make a working visit to Vietnam
from February 28 to March 2.

He will co-chair a European Union-Vietnam dialogue at the deputy
Foreign Minister level to seek ways to promote bilateral ties.

From: A. Papazian

ARMENIA THE AMBIDEXTROUS

Strategy Page

Feb 24 2012

February 24, 2012: The U.S. and Armenia have agreed to hold joint
military training exercises this April, in Rumania. Armenia has 130
troops in Afghanistan, and is sending more. Armenia wants to develop
better relations with the United States. The week long exercises
will enable both countries to improve the ability of their troops to
operate together.

Armenia lives in a rough neighborhood, and needs all the friends it
can get. Neighbors include Georgia (another American ally), Turkey
(a NATO member) and Azerbaijan (an ancient enemy). What is odd about
all this is that Armenia, formerly part of the Soviet Union, is now
a Russian ally, and hosts a permanent Russian garrison.

Last month Russia announced that the major military exercise this
year, “Caucasus-2012”, would be held in Southern Russia (including
the Caucasus), Abkhazia, South Ossetia and Armenia and would simulate
operations if there were a war against Iran by Israel and the United
States. Russia is a staunch ally of Iran.

In the early 1990s, Armenia went to war with Azerbaijan to annex
an Armenian majority district (Nagorno-Karabakh) that was separated
from Armenia by a strip of Azerbaijan territory (populated largely
by Azeris). Although Azerbaijan is larger than Armenia, and has oil,
the Armenians are better fighters, and the conflict festers, despite
a 1994 ceasefire.

AZERBAIJANI EURO MPS DISCUSS NAGORNO-KARABAKH WITH ARMENIAN PRESIDENT

Vestnik Kavkaza
Feb 24 2012
Russia

Members of the Euronest Parliamentary Assembly have discussed the
Nagorno-Karabakh conflict with Armenian President Serzh Sargsyan,
Azerbaijani MP Faradzh Guliyev told Trend on Friday.

Azerbaijani officials told Sargsyan that they cannot visit graves of
their compatriots on the occupied territories. They also noted the
need to organize meetings of Azerbaijani and Armenian communities
of Nagorno-Karabakh.

President Serzh Sargsyan responded that Nagorno-Karabakh is not part of
Azerbaijan. Azerbaijani MPs reminded about 4 UN resolutions demanding
withdrawal from the occupied territories.

Sargsyan rejected the initiative of EU assistance in resolving the
conflict, expressing preference of the OSCE Minsk Group.

Guliyev said that Armenian border guards escorted them to an isolator
at the airport in Yerevan.

Azerbaijani MPs Rovshan Rzayev, Faradzh Guliyev and Azay Guliyev
visited Armenia to attend the social committee of the Euronest PA on
February 21-23.

Euronest consists of Azerbaijan, Armenia, Georgia, Moldova and Ukraine.

OSCE REPORTS FEWER TENSIONS AROUND NAGORNO-KARABAKH

Vestnik Kavkaza
Feb 24 2012
Russia

The OSCE has concluded monitoring of the Armenian-Azerbaijani contact
line of forces at the Myarzili Village of the Agdam District of
Azerbaijan, 1news.az reports.

Andrzej Kasprzyk, personal representative of OSCE chairman in
Nagorno-Karabakh, said that monitoring was peaceful, although certain
violations were registered.

The official said that conversations with locals convinced him that
the situation became less tense. Investigations of every incident,
according to a joint declaration of Azerbaijani, Armenian and Russian
presidents, continue.

Monitoring from the Azerbaijani side was carried out by Anrzej
Kasprzyk, Peter Ki, coordinator of the OSCE office, and Antal Herdic,
field assistant of the personal representative of OSCE chairman.