Preface

 

Dear Readers,

 

Anderson & Anderson LLP is an international law firm, based in the United States, founded in California in 1885. We have been active in China for more than forty years and in Mongolia for over twenty. Our practice both inside and outside of Mongolia has included a diverse range of fields, including mining, intellectual property law (e.g., trademark, patent, and copyright registration and protection), tax law (general domestic and international tax law), litigation and arbitration, both in Mongolia and internationally, direct foreign investment, banking law and structured cross-border loans, mergers and acquisitions, derivative contracts, securities law, real estate and property law, due diligence and contract work related to all of the above fields, initial and secondary public offerings and offerings of bonds on stock exchanges, domestic and foreign, other securities-related transactions, as well as establishment of Mongolian subsidiaries and the franchising thereof.

 

Furthermore, our clients come from a wide variety of backgrounds, including influential international organizations (both governmental and non-governmental), private banks and insurance companies, major media companies, foreign and domestic mining corporations, including wholly-owned subsidiaries, telecom and media firms, as well as manufacturers of construction equipment and the world’s largest soft-drink manufacturer.

 

We send you this newsletter, Mongolia Lex, as an accommodation and to keep you abreast of the latest topical changes in Mongolian law. If there are other areas of law you wish to be kept informed about, please do let us know.

 

Yours faithfully,

 

 

Anderson & Anderson LLP

Ulaanbaatar Office

 

 

 

 

Practical use of International Treaties to which Mongolia is Party

 

1. Overview

Pursuant to Constitution of Mongolia, the international treaties to which Mongolia is a party, shall become effective as domestic legislation upon the entry into force of the laws or on their ratification or accession. Mongolia shall not abide by any international treaty or other instruments incompatible with its Constitution. International treaties to which Mongolia is party are bilateral or multilateral agreements in writing which are related to international law and which determine the mutual rights and obligations of Mongolia, the State Ih Hural of Mongolia and the Government of Mongolia and their administrative bodies as well as those of international organizations. ¹ Mongolia shall implement and fulfill its obligation under the international treaties and international treaties shall be part of Mongolian legislation once signed on those international treaties.

 

All international treaties to which Mongolia is party shall abide in territory of Mongolia in following conditions pursuant to Resolution of Supreme Court, No.2 (2008):

 

Modifications and amendments to laws and other enactments, connected to implementation of international treaties, are not necessary.

 

International treaties are not incompatible with Constitution of Mongolia.

 

International treaties are published in official state gazette, namely “Turiin Medeelel”.

 

2. Implementation and Supervision of an International Treaty to which Mongolia is party

Ministry of Foreign Affairs shall announce from when International Treaty shall be effective to the public through its website.² The Ministers, Departments and other organizations of Mongolia falling within the issues which are covered by the international treaty in question shall ensure implementation of obligations of the Mongolian side. ³

 

Pursuant to Law of Mongolia on International Treaties, Article 24.3, Ministry of Foreign Affairs shall supervise the implementation of international treaties, conduct report regarding implementation of international treaties and send that report to State Great Khural or Government if necessary. Besides, Government shall supervise and organize implementation of international treaties pursuant to Law of Mongolia on International Treaties, Article 24.4. Above-mentioned two articles are too broad and do not specify obligations of both Government and Ministry of Foreign Affairs in supervising implementation of international treaties clearly, which may create uncertainty and hindrance for supervision of treaties by both of them.

 

State authority falling within the issues which are covered by the international treaty in question shall supervise whether other parties of international treaty implement international treaty and how other parties ensure rights of Mongolia under international treaty. Furthermore, above State authority shall demand other parties of international treaty to implement it or submit offer to withdraw or denunciate international treaties to the State Great Khural or Government in case other parties do not implement it. ⁴

 

3. Report on Implementation of International Treaties to which Mongolia is party

In case Mongolia is obligated to prepare report on implementation of its certain international treaty due to its obligation under International Treaty, state authority falling within the issues which are covered by the international treaty shall prepare it within the timeline and translate it into the necessary language.⁵

 

Government shall discuss above-mentioned report by its session and issue further instruction which shall be sent to relevant state authorities by Ministry of Foreign Affairs.

 

4. Practical Use of International Treaties to which Mongolia is Party

Although Mongolia has relevant laws and resolution which made implementation and practical use of international treaties to which Mongolia is party available, recent research paper done by National Legal Institute of Mongolia reveals that courts do not use international treaties while solving disputes. Pursuant to above-mentioned research paper, Mongolian international treaties were used and cited in twenty (20) judicial decisions issued by Constitutional Court of Mongolia out of its total one hundred ninety one (191) decisions between 1992 and 2014. Constitutional Court of Mongolia received thirty seven (37) complaints from citizens which mentioned Mongolian international treaties. In 2013, total twenty six thousand four hundred six (26406) judicial decisions were issued by civil courts in Mongolia.  Regulations from international treaty, Convention on Rights of Child were mentioned in nineteen (19) decisions out of two thousand one hundred twenty three (2123) judicial decisions with respect to family divorce. In addition, Convention on Rights of Child was mentioned in six (6) out of total seven hundred eighty seven (787) judicial decisions relevant to child allowance. Between 1^st January 2014 and 29^th August 2014, thirteen thousand one hundred forty (13140) judicial decisions were issued by civil courts in Mongolia. In only six (6) decisions out of sixty seven (67) judicial decisions relevant to family divorce and four (4) decisions out of sixty eight (68) judicial decisions relevant to child allowance, Convention on Rights of Child was slightly mentioned.⁶ To conclude, between 2013 and August 2014, civil courts in Mongolia slightly used only one international treaty, namely Convention on Rights of Child while solving disputes with respect to family divorce and child allowance. It means that other international treaties to which Mongolia is party has not been used effectively by courts.

 

5. Publications of International Treaties

Pursuant to Law of Mongolia on International Treaties, Article 30.7, the state central administrative organ in charge of external relations (Ministry of Foreign Affairs) shall publish international treaties concluded within certain year by 1^st June of next year. International treaties approved by State Great Khural shall be published at the official state gazette, Turiin Medeelel.⁷ On the other hand, international treaties approved by Government shall be published as if government resolution pursuant to rules on publishing government resolutions.⁸

 

Pursuant to Resolution of Supreme Court, international treaties published in state official legal gazette, namely “Turiin Medeelel” shall be used as domestic laws; therefore, publication of international treaties in state official publication is one of the important factors to make it practical.

 

But, as of 2017, one hundred forty (140) international treaties to which Mongolia is party were published in nine special publications of Turiin Medeelel gazette. Unfortunately, there are one hundred forty three (143) international treaties which have not been published in special publication of state gazette, Turiin Medeelel. As explained by central administrative organ in charge of external relations, Ministry of Foreign Affairs, the reason why they have not published many of international treaties in special publication of Turiin Medeelel gazette is that Chairman of Secretariat of State Great Khural shall issue resolution approving to publish special publication of Turiin Medeelel gazette pursuant to Resolution No.315 issued by Chairman of Secretariat Office of State Great Khural (2014), therefore, there must be approval from Chairman of Secretariat Office of State Great Khural so that international treaties can be published in special publication of Turiin Medeelel gazette. Hence, chairman postpones publication of special publication of Turiin Medeelel gazette by his/her inaction.

 

Above-mentioned Resolution No.315 issued by Chairman of Secretariat Office of State Great Khural contradicts with Law of Mongolia on International Treaties, Article 30 in which central administrative organ in charge of external relations, Ministry of Foreign Affairs is entitled to publish international treaties in special publication of Turiin Medeelel gazette, but above-mentioned Resolution of Chairman of Secretariat of State Great Khural limits right of Ministry of Foreign Affairs. Therefore, we suggest to amend such Resolution of Chairman so that International Treaties to which Mongolia is party can be published without delay which made it available to be used as part of domestic legislation.

 

Furthermore, as of 2017, only one hundred forty of Mongolian international treaties were officially translated by Ministry of Foreign Affairs and Secretariat Office of State Great Khural, which makes difficulty to use other international treaties which have not been translated yet. Therefore, we suggest that private institutions should be hired by Ministry of Foreign Affairs to assist for translation of Mongolian international treaties.

 

In conclusion, main hindrance which made Mongolian international treaties ineffective is insufficient legal knowledge of lawyers, government officials and legal professionals in Mongolia. Therefore, we suggest law schools, universities and Bar Association to provide good mandatory program and modules regarding international treaties to lawyers.

 

_______________________________

1. Law of Mongolia on International Treaties, Article 3.1.1Law of Mongolia on International Treaties, Article 3.1.1

2. Id.at art 24.1.

3. Id.at art 24.2. 

4. Id.at arts 24.5, 24.6.

5. Id.at arts 25.1, 25.2.

6. Research Papers, 2016

7. Id.at art 30.1

8. Id.at art 30.2