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Local Solution Settles International Grievance

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By Richard Harris, YULR Online Article

The issue

On September 18, 2000, the California legislature enacted California Civil Procedure Code § 354.4. The code entitled Armenian Genocide victims and their descendants to claim insurance benefits previously denied by specified insurers “prior to, and during the period of time of, the Armenian Genocide.”[1] The act originated from an overwhelming public interest in procuring reparations for California’s Armenian residents or citizens grievously affected by a foreign affair—an affair constitutionally outside California state jurisdiction.

The 1915-1916 massacres of more than a million Armenians by Ottoman Turks remains a hotly debated international issue.[2] Turkey has willfully refused to formally recognize the 1915-1916 killings as an Armenian Genocide— “systematic attempt to destroy the Christian Armenian people”—for “many innocent Muslim Turks also died in the turmoil of war.”[3] American branding of the 1915-1916 killings as genocide severely undercut U.S.-Turkey relations—in March 2010, the Turkish government recalled its ambassador to the U.S. after the US House of Representatives Committee on Foreign Affairs attempted to pass a resolution labeling the killings as genocide. Consequently, the U.S. sought to ease U.S.-Turkey tensions. On February 23, 2012, the United States Court of Appeals for the Ninth Circuit enjoined the California law as unconstitutional on the grounds that section 354.4 “intrudes on the federal government’s exclusive power to conduct and regulate foreign affairs.”[4]

Analysis of the law

Although California Civil Procedure Code § 354.4 relates to a foreign affair, the law clearly lies within a state’s constitutional ability to legislate for the benefit of its own citizens and by no means “intrudes on the federal government’s exclusive power to conduct and regulate foreign affairs.” Article I, Section 10 of the U.S. Constitution reserves the power to conduct foreign affairs for Congress, excluding states from meddling in international relations. In 1788, James Madison found this restriction on state authority in regards to foreign affairs “fully justified by the advantage of uniformity in all points which relate to national powers.”[5] From a national security standpoint, coherent action by a nation’s constituents can prove crucial in gaining substantial political leverage to impact other countries. An individual state adopting its own foreign policy initiatives outside the federal government might severely undermine the international agenda of the whole nation.[6]

In MOVSESIAN v. VICTORIA VERSICHERUNG AG, the Ninth Circuit court found that the California Code of Civil Procedure section 354.4 “imposes a concrete policy of redress for ‘Armenian Genocide victims[s],” subjecting foreign insurance companies to suit in California.” Arguably, California’s law conflicts with the authority of the treaty between U.S. and Turkey known as the Ankara Agreement.

On October 25, 1934, Turkey agreed to pay $1.3 million to settle claims by American nationals who “had been wrongfully imprisoned or physically injured, or that their property had been taken or destroyed, by Turkish military or civilian authorities” from 1914-1922.[7]  Both the U.S. and Turkey “agreed that the latter’s payment would release it from liability for the submitted claims, which would ‘be considered and treated as finally settled.’”[8] Thus, in 1934, the U.S. had technically absolved Turkey from any “Armenian Genocide.” At first glance, California’s policy of redress for “Armenian Genocide victims” appears to take on an international dispute already settled by the U.S. federal government’s foreign affairs power.

However, upon closer inspection, California’s insurance policy does not impart an international agenda. First, the law does not seek to hold Turkey liable for any genocide. Section 354.4 simply defines an “Armenian Genocide victim” as “any person of Armenian or other ancestry living in the Ottoman Empire during the period of 1915 to 1923, inclusive, who died, was deported, or escaped to avoid persecution during that period.”[9] This definition does not impute Turkey for the Armenian plight. The statue utilizes the term “Armenian Genocide victim” only to focus attention on a specific class of citizen. Second, the law does not aim to settle legal claims abroad. Section 354.4 specifically defines an insurer as “an insurance provider doing business in the state, or whose contacts in the state satisfy the constitutional requirements for jurisdiction” that sold insurance coverage in Europe or Asia between 1875 and 1923. Thus, the law only subjects to lawsuit the insurance companies operating within California state boundaries.

Essentially, as publisher of The California Courier and president of the United Armenian Fund Harut Sassounian posits, the California law “simply attempts to regulate the obligations of insurance companies” rather than condemning Turkey to pay reparations.[10] By the Tenth Amendment, the powers reserved to the state governments are implicitly more “numerous and indefinite” than those of the U.S. federal government.[11]

With respect to the Tenth Amendment, James Madison posited: “the powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.”[12] The transactions between state citizens and state insurance companies strongly relate to the “internal order” of the state. California sought to improve these transactions by ensuring its Armenian residents receive their just monetary compensation—aiding the internal order of the state.

Therefore, Section 354.4 lies well within California’s constitutional right to respond to private monetary claims of all its residents. In deference to the national Constitution, each state enacts laws based on its own unique history, philosophy, needs and geography. A state’s power to respond to all private claims of its residents is critical to the internal order of that state. Each state’s prosperity is critical to the internal order and functioning of the nation as a whole. The Ninth Circuit court’s February 2012 decision to enjoin the California Armenian Genocide law is a mistaken infringement on state power because the law does not intrude on the federal government’s power to conduct and regulate foreign affairs. By infringing on a state’s ability to respond to all its residents, the federal government inadvertently undermines the principle of federalism that brought the nation together.

 



[1] Senate Bill No. 1915

[2] International Association of Genocide Scholars, Letter to United States Congress, http://www.genocidescholars.org/sites/default/files/document%09%5Bcurrent-page%3A1%5D/documents/US%20Congress_%20Armenian%20Resolution.pdf

[3] “Q&A: Armenian genocide dispute,” BBC News, http://news.bbc.co.uk/2/hi/6045182.stm.

[4] Saheli Chakrabarty, “Ninth Circuit rules ‘Armenian genocide’ victims not entitled to seek compensation,” Jurist http://jurist.org/paperchase/2012/02/ninth-circuit-rules-armenian-genocide-victims-not-entitled-to-compensation.php

[5] http://www.heritage.org/constitution#!/articles/1/essays/69/state-treaties

[6] McCulloch v. Maryland

[7] http://www.anca.org/legal/insuranceclaims/amicus_USG_arzoumanian.pdf

[8] Ibid.

[9] Senate Bill No. 1915

[10] http://www.armenianweekly.com/2013/05/15/sassounian-white-house-files-politically-motivated-anti-armenian-brief-to-supreme-court/

[11] Federalist No. 45

[12] Ibid.


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