Tag Archives: International Law

Mongolian Employers Face Fines for Violation of Employee Rights to Unionize

We continue our series on the fundamental principles of labor law and the rights of the worker in Mongolia. As explained in a previous post, Mongolia became a member of the International Labor Organization (ILO) in 1969. This membership means Mongolia embraces the fundamental principles embodied in the ILO Constitution and the Declaration of Philadelphia, including the principle of freedom of association.

Ensuring the freedom of association and of collective bargaining is a fundamental principle recognized by Mongolia through the ratification of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) in 1969.

Article 16 of the Constitution of Mongolia guarantees citizens freedom of thought, speech and expression, the right to favorable working conditions, to form a party, association or other public organization on the basis of social and personal interests and opinion, and to hold peaceful assembly. Furthermore, the discrimination and persecution of a person for joining a political party or other associations or for being their member is prohibited under Mongolian legislation.

The Labour Law (1999) sets out relations to be regulated by collective agreement and collective bargaining agreement, who may participate in them, how they shall be conducted and regulations on strike action etc. The Law on the Rights of Trade Unions (1991) deals with forming and joining unions, and prohibits discrimination due to union membership or non-membership. It also sets out the rights of unions and lays out measures to prevent employers’ interference with union activities.

Mongolian legislation provides for the right of employees to form and join organizations of their own choosing and enshrines the right of these organizations to freely organize their activities and formulate their programmes. Free and voluntary negotiation is promoted at all levels between employers or employers’ organizations without the intervention of the public authorities.

The Labor Law prohibits organizing a strike involving employees of organizations responsible for national defense, national security and public order. Public servants in general are entitled to join in unions, but banned from participating in strike action under the Law on Public Service (2002).

In recent years, labour disputes in related to the breach of freedom of association and collective bargaining have been increasing in the mining, industrial and construction sectors in Mongolia. There have been cases in which employees which are terminated due to organizing a trade union or being a member of trade union organize a strike to force collective bargaining.

A company taking action against employees or labour unions, or otherwise in breach of the freedom of association and collective bargaining face Sanctions. Penalties have increased under the newly adopted Law on Infringement and employers risk fines up to MNT 500,000 for violations.

Adopting a Mongolian Child: Cause for Refusal, Termination and Monitoring Systems

We are continuing our series on international adoption of a Mongolian child. In our first post, we reviewed the legal framework of the international adoption system. Our second post listed the specific steps required to apply for adoption of a Mongolian child. In this post we will take a closer look at potential legal grounds for a refusal of the adoption application, and we will review the monitoring mechanisms in place to ensure the adoption is a success, and beneficial to the child.

An application for international adoption will be rejected if it is found that false information or false documents have been submitted or the information and documentation provided in the application does not comply with the real circumstance of the adopting parents. This is simple and expected, potential adoptive parents must be truthful and forthcoming on their adoption application papers.

The application may also be denied if the examining officers feel that the prospective parent’s reasons for the adoption are uncertain or suspect; or where the adoptive parents’ ideas and goals for the adoption and subsequent rearing of the child are divergent and their opinions are not unified.

After the adoption is approved, a bilateral or trilateral agreement shall be signed by the adoptive parents and an adoption agency in compliance with the UN Convention on the Rights of the Child, this is required to finalize the adoption legally. The contract provides detailed information on adoptive parents’ obligation to provide the child with normal opportunities for growth, safety, education, and protection of rights.

Normally, the adoption agreement with include provisions requiring the adoptive parents to submit updated information about the child to the Diplomatic Representative Office of Mongolia each year until the child reaches the age of 16. If the adoptive parents change their place of residence, they are obliged to immediately notify the competent authorities of their country of residence and Diplomatic Representative Office of Mongolia. Additionally, the intermediary adoption agency will responsible to organize visitation to ensure the adopted child’s situation.

Over the course of the adoption, the Immigration Agency of Mongolia will maintain the right to terminate the adoption arrangement if it is proven that the adoptive parents consciously lost the child, or engaged in any activity not beneficial for the child’s best interest, such as physical, mental, or sexual abuse or neglect of the child, or drug use by the parents. The adoption will also be canceled if the parents lose the right to act as adoptive parents under the domestic laws of their country of residence, or where the child’s rights as set out in the adoption agreement, or local laws regarding child protection are violated.

Adopting a Mongolian Child: The International Adoption Framework

Every so often, our Mongolian lawyers receive an inquiry from a foreign couple, usually from the USA or Europe, seeking to adopt a Mongolian child.  When we get one of these inquiries, the first thing we do is explain some of the background to the international legal issues to the couple, then we get into the specifics of international adoption in Mongolia.

The adoption of a Mongolian child by a foreigner is governed under a few international Hague Conventions and by the Mongolia Family Law, Law on Legal Status of Foreign Nationals, and specifically by the Regulation on Procedure for Adoption of a Mongolian Child by Foreign Nationals.

From the international perspective, Mongolia has ratified the “Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption and the United Nations Convention on the Rights of the Child”. These two international conventions set specific rules for the protection of children and outline the rights and responsibilities of countries as regards international adoption.

In the event of suitable adoptive parents cannot be identified in the country of origin of the child, international adoption is allowed. Under these conventions, the best interests of the child is the primary consideration, and is a basic right of the child to be adopted and must be confirmed by the prospective adoptive parents. In an international adoption, the prospective adoptive parents must meet the legal adoption requirements of their country of residence. The adoption must also meet the same safeguards and standards as applied to internal adoptions within the child’s country of birth.

So, for foreign couples considering adoption of a Mongolian child, the first step will be to obtain adoption approval in the country of the couple’s current residence. In our next post we will review the specific international procedures, and local Mongolian process for adoption.

Mongolia Employees and Employers: Know Your Rights

Mongolia has been a member of the International Labor Organization (ILO) since 1968 and has ratified 20 international conventions of the ILO, including all eight Fundamental Conventions, 2 of the 4 Governance Conventions, and 10 of 77 total Technical Conventions. Of the 20 Conventions ratified by Mongolia, 19 remain in force while 1 has been rescinded.

Through its ratification of all eight of the ILO’s fundamental conventions, Mongolia has recognized the following four fundamental principles and rights of the worker:

  • Ensuring freedom of association:
  • Eliminating child labour
  • Abolishing forced labour
  • Prohibiting non-discrimination in employment.

Recently, Mongolia hosted a National Workshop on International Labour Standards for members of the judiciary and lawyers. The workshop focused on application of labor rules by the courts domestic courts, and was organized in cooperation with the Mongolian Bar Association, the International Training Center of ILO and the ILO Country office for China and Mongolia (CO-Beijing).

Judges, attorneys and government officers participated in the training for 5 days. The training consisted of review of the ILO and international labour standards system, the use of the work of ILO’s supervisory bodies; and discussions as to when and how domestic judges and lawyers can use international labour law to effectively resolve labour disputes. Of key importance was ensuring the relevance of international labour standards in key situations with widespread practical application.

The workshop found that in practice, the international labour standards set out in the various conventions were not widely referred to or implemented by Mongolian lawyers and courts. This is determined to be primarily due to lack of knowledge of many of these professionals as to Mongolia’s ratification of these conventions, and the fact that due to inadequate translation into Mongolian, many professionals were not certain of the actual contents of the conventions.

The workshop focused on the importance training in strengthen participants’ knowledge and skill to effectively utilize these international labour sources to resolve employment and labor issues within Mongolia.  All participants noted that these international labour standards may be used directly to resolve the labour disputes or to interpret a relevant domestic provision to fill a gap and resolve ambiguities in the domestic law.

Proper awareness of and application of these international standards are vital for both Mongolian employees and expatriates working in Mongolia. Expatriate employees in Mongolia are granted equal  legal rights and protections, and should never feel their foreign employer has the upper-hand in cases of unfair termination or discrimination in Mongolia.

55 Years of Cooperation with the United Nations

Mongolia became the 101st member of the United Nations on October 27, 1961. Thursday, October 27 marks the 55th anniversary. A ceremony was held October 1st at the Mongolia Ministry of Foreign Affairs in celebration of Mongolia’s long participation in the global body.

The Mongolian Vice Minister of Foreign Affairs, and the UN Resident Representative both spoke at the event, discussing the contributions Mongolia has made to the United Nations, and the benefits Mongolia has received in return. Both look forward to a strong future for Mongolia and increased participation of the country in the international community.

The Ceremony comes a month after The President of Mongolia, Tsakhiagiin Elbegdorj presented a speech on principles of sustainable development to the 71st Session of the UN General Assembly. Mr. Elbegdorj’s speech discussed the rapid economic changes in Mongolia, and emphasized the principles of accountability, democracy, human rights, and international cooperation as vital to ensure the path of global sustainable development.

Enforcing a Foreign Arbitration Award in Mongolia

When negotiating the terms of an investment project, Foreign banks and other investors typically opt to go with foreign arbitration rather than litigation in Mongolia. At least five international arbitration proceedings have been well publicized in Mongolia since 2000. However it remains an open question as to whether the arbitration award is worth the high costs.

In 1994, Mongolia ratified the New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. Therefore Mongolia is obliged to recognize and enforce foreign arbitration awards produced under the jurisdiction of another state party to the Convention. Mongolia’s declarations in signing the Convention, indicating that Mongolia will apply the Convention only on the basis of reciprocity and only as to commercial disputes defined by Mongolian national laws, in most cases do not create a substantial barrier to enforcement.

The Law on Arbitration of Mongolia, 2003 has been drafted in compliance with the United Nations Commission on International Trade Law Model Law. The process of enforcing the award is fairly straightforward. The creditor must first formally request enforcement of a foreign arbitration award in the territory of Mongolia. In order to do that the creditor must submit the original copy of the final award with official translation to Mongolian and a judicial order warranting the feasibility of its enforcement. When the Court Decision Enforcement Agency receives the request, an Enforcement officer who will be in charge of this procedure will be assigned to collect on the reward. From then, the enforcement of the arbitration award is treated the same as enforcement of a Mongolian court decision, the enforcement officer will take all measures necessary to collect, as allowed by the law.

Even in Jail, There’s No Place Like Home

The number of Mongolians studying, working and travelling for business purposes abroad has steadily increased since 1990. As Mongolia’s relations with foreign countries around the world expand, so have the numbers of Mongolians traveling abroad. Unfortunately, this also means the number of Mongolians convicted of crimes abroad has also increased. Currently there are a total of 130 Mongolian citizens now serving jail time in foreign countries. These individuals face many difficulties such as the language barrier, extreme climates, and different qualities and preferences for food. Additionally, due to distance, these inmates have very limited opportunity to meet with family which may visit.

The Mongolian Government making efforts at bringing some small relieve to these convicts of criminal offences abroad, but expanding opportunities for them to serve sentences in their home country.

In the last years, Mongolia ratified the international Convention on the Transfer of Sentenced Persons, established in Strasbourg on March 21, 1983. It has been ratified by 65 countries, including every country of the Council of Europe (except Monaco), in addition to Australia, Canada, Japan, South Korea, Mexico and the United States. Under the provisions of this convention, Mongolian convict within member countries have been transferred to Mongolia.  At the same time, foreign convicts in Mongolia can be transferred to their home countries via the Convention or through bilateral agreements with Mongolia.

Mongolia has concluded a Bilateral Treaty on the transfer of sentenced person with seven countries, namely Peoples Republic of China, Russia, Canada, Poland, Turkey, South Korea and Cuba. At the beginning of 2016, the Parliament approved the bilateral agreement with Government of Hong Kong Special Administrative Region of the People’s Republic of China. As a result, nine Mongolian convicts serving jail time in Hong Kong are now eligible to be transferred to Mongolia.

No Dual Citizenship Allowed in Mongolia

Like all countries, Mongolia has specialized laws regarding immigration and nationality. The Mongolian Constitution indicates that the grounds and procedure for determining Mongolian nationality, or for acquisition or loss of citizenship shall be defined by the law.

The Current Law of Mongolia on Citizenship was enacted in 1995 and it has been updated four times since then. According to the law, Mongolian citizens shall not be allowed to hold citizenship of a foreign nation and maintain their Mongolian nationality. Further, if a foreigner wishes to acquire Mongolian citizenship, he or she is required to give up any prior citizenship.

Under Mongolian Law, there are four ways an individual may become a Mongolian Citizen:

  • If both of the parents of a child are Mongolian then the child is automatically Mongolian. It doesn’t matter where the child is born. (In some circumstances it is possible for Mongolian parents living abroad to request the child become a citizen of a foreign country.)
  • A child born to one Mongolian parent within the territory of Mongolia is also automatically Mongolian.
  • A child who is within the territory of Mongolia whose parents are not identified is designated a Mongolian citizen.
  • Individuals of foreign nationalities may apply for citizenship via the President’s office, or through a Mongolian embassy.
  • Mongolians who are adopted by foreigners maintain “the right to choose his/her own nationality” according to the Family law of Mongolia.

Interestingly, approximately 16 thousand Mongolian citizens report having a dual citizenship, with most of them are women and children. Over the last 20 years an estimated 59,000 citizens withdrew their Mongolian citizenship while citizenship was awarded to only 221 individuals (not including new births within Mongolia).

A total of 250 Mongolian children have been adopted by foreign citizens, including family members. There are concerns that the Law should be amended to allow an adopted child to maintain his/her native citizenship until turning 18 years old. Until this change is made, Mongolian law will not be aligned with international convention regarding rights of children.

For this reason, the President, Ts.Elbegdorj has proposed amendment of Law of Mongolia on Citizenship, and has submitted relevant drafts legislation to the Parliament for consideration. It is expected that this change will be officially passed later this year.