| The Tsunami Disaster: Lessons For or From Tourism Law By John J Downes President of IFTTA MD of Perimund Ltd. International Travel Law Consultant I remember when the Lockerbie Disaster occurred and I was asked to comment on legal liabilities by representatives of the media. I declined to do so whilst there were bodies still spread out across the Scottish countryside. It seemed tasteless to talk of liability and compensation at such a time of great trauma and morning. There was also concern at the distaste of "ambulance chasing" lawyers taking advantage of an international disaster and terrorist outrage. Eventually, however, there was a focus on the legal remedies for the victims' loved ones. It was not compensation that they were pursuing so much as the truth. They had more faith in the legal process than the political one. Though it was a long drawn out and complicated process involving a Scottish court sitting in the Netherlands, it brought "closure" for most of the families. Is there relevance to the Tsunami Disaster? Well, yes. Once again, I have been frequently been asked by the media about the legal rights of western tourists affected by this. Interestingly, the questions have not been about those who have lost loved ones or about those injured or traumatised. There appears to be an assumption that insurance will deal with those situations. Rather the questions were about those whose holidays were curtailed and those who were reluctant to go on holidays yet to take place but booked prior to the disaster. Again, initial reaction is that these are trivial matters compared to the suffering of the local people in the regions affected. However, on reflection, these are very important matters to be addressed if the host countries are to recover their tourism sectors. Furthermore, the law can be used as a vital mechanism to help reduce the adverse effects of natural disasters. Curative legal remedies can lead to greater preventative legal care. When the EC Package Travel Directive came into force, many European tour operators feared that they would be faced with liability for factors over which they had no control. The basic principle was that the "organiser" of the package (Usually a tour operator) would be liable for the component parts of the holiday. Thus, they would be liable for the services provided by the airline, the bus company, hotel, local tour provider etc. At the consultation period before enactment many of their representatives complained that these were independent businesses over which they exercised little or no control. However, this was rejected. Particularly large tour operators have very considerable influence over destination service providers. It was hoped that this would make them more careful in their selection of hotels etc. so as to ensure that their clients were safe and supplied with the services they had contracted for and at the level and quality described in the brochure or other promotional material. The EC Package Travel Directive applies to holiday and other travel packages sold by retailers to consumer in the EU. It does not matter where the destination is. Tour operators were particularly concerned about packages involving destinations outside the EU where the local rules governing safety standards might fall far short of those in force in EU Member States. A series of court decisions have brought them comfort, however. For the most part, judges have held that provided that they have chosen suppliers carefully and that, for example, a hotel complies with local regulations they have fulfilled their obligations to the consumer. It should be noted, however, that the cases in the UK, for example, have been decided in lower courts and have therefore not set any binding precedent. Furthermore, they have rested on the facts pertaining to their particular circumstances. Look again at the requirements in order to avoid liability: What if a tour operator has been sending clients to a hotel located on a beach, which they knew, or ought reasonably to have known, was in breach of local safety and/or planning regulations. If their clients suffered death or personal injury directly as a result of being in that location, the tour operator might not be able to avail themselves of the above defence. Not only might this provide a legal remedy for western tourists affected but at least as important, if not more so, it might make tour operators to bring pressure to bear to ensure that the redevelopment of tourism infrastructure takes into account these safety issues when new planning regulations are developed. Furthermore, the outpouring of international human solidarity should lead to EU and other western tour operators to respond to consumers' increased awareness of the importance of sustainable tourism development, poverty alleviation and local community empowerment. They should use their considerable influence to persuade host country governments to follow those principles. The Law has a vital role to play in the recovery of these tourism destination countries. In recent decades, the significance of law itself has often been under-estimated. This is as a result of the growing momentum associated with disciplines such as economics. An academic and analytical hegemony had ousted a healthy examination of the role of Law. Organizations such as the World Bank were partly responsible for this emphasis. However, the realisation that the 'post-Washington consensus' had focused unduly on abstract economic and fiscal studies, without having focused on institution-building emerged after the economic failures in South-Eastern Asia in the late 1990s. If further corroboration were needed, then the difficulties of establishing a market economy in the former USSR provided it. Economic and fiscal success can only be built on a sound institutional framework. That framework is dependent on sound legal infrastructures. Thus it is clear that in the construction of an efficient tourism sector, a national Tourism Law, which builds a functional, institutional framework, is a fundamental aspect of any holistic, facilitative approach. The quality of national Tourism Laws vary. For the most part they are poor. Too often lip service is paid to the principles of sustainable tourism development, poverty alleviation and local community empowerment. There are very important Declarations and Codes of Ethics in Tourism that most countries in the affected region have signed up to. The World Tourism Organisation has done excellent work in this field. There are advantages in using these codes of conduct rather than "hard law" or "black letter law" as lawyers label it. Ethical standards in commercial life cannot be achieved by law alone which is often too blunt an instrument. The law tends to take a forensic or curative approach rather than a preventative one. It is normally expressed in complex language that even the most conservative theologian might describe as obscurantist. And for many, perhaps most, citizens’ legal redress is prohibitively expensive. Voluntary codes of ethical conduct can be expressed in plain language, be more immediate and widely known. They can have an educational effect, informing stakeholders about what is generally accepted as good practice. The ends are achieved by education, persuasion and voluntary compliance rather than by State coercion. A good code should remove abuses, promote higher standards, clarify areas of doubt and provide machinery for the proper handling of complaints. There is increased recognition of “soft law”, norms and “commonly accepted standards” by the courts. In the UK for example we have had the Highway Code for nearly 60 years yet it is not part of the Law. It does not have statutory effect. A breach of the code does not of itself incur civil or criminal liability. However, you cannot obtain a licence to drive without passing a test on the Highway Code. Thus, whilst the Code of Ethics in Tourism, for example, may not be enshrined in local law planning and licensing authorities might take it into consideration when determining whether or not an applicant should be granted planning permission or a licence. In order for codes of ethics, custom and practice to be accepted by the courts they must satisfy four criteria. They must Be fair and reasonable: the rights and obligations of the parties should be equitably distributed Be clear: the code or custom and practice should be precise. It should be clear what it is that you are required to do in order to comply Be known: the code or custom and practice should be widely disseminated and commonly understood Not be in breach of an express rule of law: natural justice and existing State Law takes precedence.
The WTO's Global Code of Ethics for Tourism attempts to provide an equitable balance between the rights and obligations of the various stakeholders in tourism. The language is necessarily vague and thus may fail the second test for enforcement of codes set out above. It would not be difficult for a lawyer defending a person in breach to use this to undermine the value of the code as a measure worthy of recognition by a court. Can this be overcome? Yes. The Code should be followed up in each jurisdiction by more detailed and precise technical guidelines for the various stakeholders. The equitable requirement also demands that those to whom the code applies should be capable of compliance. Local physical, technical, economic or social conditions may make this difficult or impossible. Thus, the code should be adapted to meet local capacity. This is impliedly accepted by Article II (a) of the Annex to the Code. The code should be set in the context of the special conditions and requirements of the region, country, locality or profession. This is not suggesting that it should be revised or varied but adapted. The Code should be put on the agenda for all aid and tourism development programmes for the region. The tourism professions should be encouraged to adapt their own codes of conduct to reflect the Global Code and subsequent technical guidelines. To take advantage of the international human solidarity and concern, particularly amongst western tourists familiar with the region, a logo should be adopted which may be made use of by the private sector as evidence of their commitment to, and compliance with, the code. Where a person or business displays the logo they are making a legal representation that they conduct their business in accordance with the provisions of the code. A consumer that establishes that this was their reason for choosing that business may claim damages for misrepresentation or breach of contract where they establish that the trader was in breach of the code’s provisions. The trader may also be prosecuted under consumer protection legislation for making a false or misleading representation. However, there are some principles that should be recognised as fundamental to the development of tourism. These principles should be EXPRESSLY enshrined in new more comprehensive Tourism Law frameworks. All future tourism development should be subject to those legal provisions and challengeable in a court of law by representatives of the local community and advocacy groups, amongst others, where a breach occurs. | 
