Monday, March 18, 2019

International Law and the Constitution of Mongolia: A Question for Our Readers

Flag of MongoliaArticle 10 of the Constitution of Mongolia provides:

  1. Mongolia shall adhere to the universally recognized norms and principles of international law, and shall pursue a peaceful foreign policy.
  2. Mongolia shall enforce and fulfil in good faith its obligations under the international treaties to which it is a Party.
  3. The international treaties to which Mongolia is a Party, shall become effective as domestic legislation, upon the entry into force of the laws on their ratification or accession.
  4. Mongolia shall not comply with or abide by any international treaty or other such instruments that are incompatible with this Constitution.

So here's our question. Does article 10(3) state that treaties are effective as domestic legislation when the treaty enters into effect or when implementing domestic legislation enters into effect? Please leave your answers for us in the comment section, thanks!

English text of the Mongolian Constitution courtesy of the constituteproject.org, a database of enacted and draft constitutions from around the world.

(mew)

https://lawprofessors.typepad.com/international_law/2019/03/mongolia.html

| Permalink

Comments

It seems treaties are effective as domestic legislation when implementing domestic legislation enters into effect: http://www.mfa.gov.mn/?page_id=29193&lang=en

Posted by: Ajla | Mar 19, 2019 1:11:40 PM

It's an arguable position, but I tend to think that the stronger argument is when the treaty enters into effect based upon "entry into force of the laws." This seems to imply the international law (VCLT?) on ratification or accession. In other words, it's the laws "on" ratification or accession, not any law passed as a consequent of ratification or accession.

Posted by: Christopher E. Bailey | Mar 20, 2019 2:35:32 AM

The text is not enough. After all the US Constitution, art 6, says "This Constitution, . . . and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby,. . .." Yet we have the judicially created doctrine of non-self execution of treaties, which holds that, for many treaties, judges of neither state nor federal courts are bound, unless Congress domesticates the treaty law rules. So you have to look at Mongolian practice (legislative and judicial) in the area.
Further, you have to look at the structure of the rest of the constitution to understand the meaning of "laws on their ratification or accession." in the part of the Constitution which says how treaties are made.
Finally, why are we asking? If it is to advise a client who wants to do business there, I would be loath to answer without consulting a Mongolian lawyer.

Posted by: Ken Gallant | Mar 20, 2019 12:34:12 PM

Based on my reading of Art. 27 in the link provided by Ajla, I think Ajla is right that the rules are effective as of the time the implementing legislation takes effect, assuming that the statute in the link is constitutional.

Posted by: Ken Gallant | Mar 26, 2019 1:30:07 PM

Post a comment