Is Mon­go­lia a ‘failed’ state?

The UB Post - - Politics - By B.MYAGMARDORJ

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.

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