Is Mongolia a ‘failed’ state?
Parliament has been unable to hold its regular fall session for over a month. As it states in Mongolia's Constitution, under Article 27.1, “Parliament shall exercise its power through its sessions and other organizational forms”, and therefore, a session is the way for Parliament to exercise its power.
Following the “protest” by members of Parliament against the speaker, the attendance of Parliament has been insufficient to hold sessions. In this sense, Mongolia could be likened to a “failed state”.
According to the Montevideo Convention, states should have a permanent population, a defined territory, an (effective) government and the capacity to enter into relations with other states, which are the main four requirements for states. This convention was adopted in the 1930s, in Montevideo: the American Convention on Statehood. Article 1 of the convention lists the four requirements that are often considered to be a good starting point for any discussion of statehood, even though many observers would agree that the Montevideo list is incomplete and outdated, at least according to Jan Klabbers, professor at University of Helsinki.
With regard the current situation of the Mongolian Parliament, I would draw your attention to the requirement of an “effective government”.
As Jan Klabbers, one of the leading experts on international law, stated in his book “International Law”, he defined that “most pertinently, the reduced effectiveness of government does not affect its statehood; even Somalia, whose government has been either ineffective or non-existent since the early 1990s, continues to be considered as a state, albeit perhaps a ‘failed state’.”
The criteria of a defined territory and a permanent population are more or less formal in nature. A state either has these two or does not, in other words these are something that one can identify clearly. On the other hand, the two remaining criteria, the effective government and the capacity to enter into relations with other states are more qualitative. Arguably the most important requirement is that in order to qualify for statehood, a state must have an effective government.
The case law that provides reasonable explanation about the term "effective government" is arbitrator Huber's, in the Island of Palmas arbitration. For Huber, effective government (in this case in connection with title to territory rather than statehood as such) served to allow other states to contact someone if things were going wrong. In other words, if a territory lacks effective government, there is no one to contact or hold responsible should, for instance, one of your citizens be injured.
The underlying idea is that a state can be accepted as such only when it is in a position to guarantee that law and order, in whatever precise form, will be upheld. That is not to say that international law is very concerned with the precise form of government; as long as law and order can be guaranteed, international law is satisfied.
In the present case, as member of Parliament L.Bold mentioned in his interview, the current Parliament has been spending about 80 percent of its time to discuss issues or problems not related to its main task. Hence Parliament has not discussed most of its agenda during this session. It is therefore arguably sufficient enough reason to blame Parliament for not performing its constitutional mandate and failing in its main function.
Mongolia is a country that has the rule of law, and therefore the actions of its people, and above all any of its rulers, must be in conformity with the law. In other words, for those who are protesting against the speaker, boycotting Parliament’s regular session with the demand that the speaker resign is highly controversial and arguably an illegitimate way to protest.
The Act of Parliament regulates such matters related to electing and dismissing the speaker. As the head of the highest state body of Mongolia, his immunity must be protected under law(s). Hence, Article 10 of the Act of Parliament lists the grounds on which the speaker can be ousted -- none resemble what the members of Parliament are doing. It is therefore sufficient to believe that this is a substantial ground to believe that the highest power of the Mongolian state has failed with regard to the term of effectiveness caused by the unlawful actions of the legislators. It could be a sign that we must consider such matters as a priority when we discuss amendments to the Constitution.