Exporting the Rule of Law to Mongolia: Post-Socialist Legal and Judicial Reforms

Article excerpt

This article analyzes Mongolia's legal and judicial reforms and the efforts of international organizations and outside states to assist or encourage those reforms. Most international organizations and outside states predicate their legal assistance on establishing the "rule of law, " but they rarely operate from a developed definition of this concept. This article analyzes what the concept of "rule of law" commonly means, and establishes a cogent and tangible, and procedurally-minimalist, rule of law definition. This article then uses this formulation to analyze Mongolia's legal and judicial reforms. Mongolia's experiences demonstrate four important best practices for future rule of law promotion: (1) judicial independence is the cornerstone of the rule of law; (2) formal government action plans offer "more bang for your buck;" (3) public participation and sentiment is a proxy for the institutionalization of the norms and culture of the rule of law; and (4) the leverage of donor coordination pays dividends.

I. INTRODUCTION

From the time of its independence on July 11, 1921, (1) and throughout 70 years as a socialist state, Mongolia was something of an enigma to the rest of the world, having withdrawn inward. Mongolia engaged in diplomatic relations almost exclusively with one state: the Union of Soviet Socialist Republics (U.S.S.R. or Soviet Union)) Then, after the Sino-Soviet split, Mongolia primarily acted under Soviet direction as a buffer state between the U.S.S.R. and its other large communist neighbor, China) During that time, only the U.S.S.R. knew anything about Mongolia and its people. (4) Mongolia stumbled onto the world scene during the remarkable antecedents which led to the dismantling of the Soviet Union and its satellites. (5) Only then did the world awaken to Mongolia and its status as an independent state.

Following the lead of the former satellites, in 1990, Mongolia undertook a joint transition from socialism and a centrally-planned economy to democracy and a free-market economy. (6) At its outset, the parliamentary leaders envisioned a sustainable and modest transition. After the transition began with a basic amendment to the Constitution to provide for a multi-party state, subsequent events enlarged the initial scope of the shift. (7) Put simply, Mongolia collapsed. Mongolia's economic implosion and social structure dissolution resulted from a unique combination: Eastern Europe's rejection of communism; the Soviet Union's disintegration; the resultant destruction of the Soviet trading bloc, the Council for Mutual Economic Assistance ("CMEA"); and the Soviet Union's cessation of aid to Mongolia. (8) As a result, Mongolia probably suffered the worst peacetime economic collapse of any nation this century. (9) By the time the dust settled, the transition had to undertake the goal of completely rebuilding all of Mongolia's internal structures.

As a result, Mongolia's leaders lacked the advantage of gradual change. Instead, they chose a "shock therapy" approach by opening its borders, dismantling trade barriers, ceasing price controls, and privatizing the state's holdings. (10) Throughout this process, over the last twenty years, Mongolia received massive influxes of donor aid in the form of human, technological and financial capital. (11) Surprisingly, Mongolia's transition has been lauded as achieving remarkable success; and its institutions are democratic, widely-established and domestically and internationally respected. (12) However, Mongolia still cannot stand on sturdy legs if the support of donor aid is reduced or retracted.

In order for the government of Mongolia to understand how foreign aid influences its economy, society and government, and what level of dependence or interaction exists, this article addresses certain questions. How did foreign aid influence, assist and advance Mongolia's legal transition? Was foreign aid predicated on a firm understanding of what Mongolia's economy and legal system needed, or did foreign donors merely advance general, and western notions of legal, democratic and capitalistic reforms? …