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18th IFTTA Conference Malta 2006
Global Trends in Tourism
Law
By
John J Downes
Emeritus President of IFTTA
MD of Perimund Ltd.
International Travel Law Consultant
The Importance of Law in
Tourism Development
Organizations such as the
United Nations World Tourism Organization (UNWTO) have emphasized the distinct requirements of legal regulation of the
travel and tourism industries. Legal scholarship is demonstrating that the UNWTO's practical concerns are in
accordance with the legal treatment of travel and tourism of an ancient pedigree.
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. I have come across many instances where laws have been drafted by persons not legally qualified to do so. They
have been prepared with no understanding of the nature of law, the roots of the specific legal system or the interplay
of the various sources and hierarchy of law. There has too frequently been confusion between the role of law and the
rule of law.
Organizations such as the
World Bank were partly responsible for this situation. 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. It is interesting to note that the
world’s largest and Communist State, China, has recognised that economic and fiscal success will 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 travel and tourism industry, a Tourism Law, which builds a functional,
institutional framework, is a fundamental aspect of any holistic, facilitative approach.
Although the legal principles
and norms of legal regulation of the travel and tourism industry have occurred and are occurring in the international
arena (for instance in the fields of aviation) there is a need for comprehensive national legal regulation. The
national legal regime must, however, be consistent with the developing international norms. A state’s lack of
legal synchronicity and harmony creates obstacles that impinge on the free movement of persons, goods, services and
capital as is necessary to create a level playing field on which the State's comparative advantage in tourism may be
exploited. If it does not have a sound legal infrastructure for travel and tourism, then it will act as a disincentive
to investment.
The Need for a Sound
Institutional Framework
In many countries there is an
unsatisfactory diffusion of organizational and operational responsibility for tourism. Thus, despite its importance to
the economies of many states, it is nonetheless described as "the invisible industry". Few States have a Ministry
whose sole or principal purpose is responsibility for tourism. Thus, the industry is often neglected or misunderstood
at national level. It usually lacks a senior government advocate when dealing with other Ministries, most particularly
the Finance Ministry. Often the latter will make generous provision of fiscal incentives to further industrial
development but will exclude the travel and tourism industries or indeed impose heavier taxes and duties on them as a
fiscal income generator.
The UNWTO prepared a Report on
the Role of National Tourism Administrations (NTAs) and National Tourism Organisations (NTOs) worldwide. 97 countries
responded. The Report contains the results of a survey of the structures, spheres of competence and activities of NTAs
and NTOs worldwide.
An NTA is defined as:
“The central or federal government body with administrative responsibility for tourism at the highest
level”. It doesn’t matter if the Ministry has other responsibilities e.g. Antiquities or Culture. Where
such a Ministry has an independent section specifically devoted to tourism, that section is defined as “an
executive body for tourism that is an integral part of the NTA in question”.
An NTO is defined as an:
“autonomous body of public, semi-public or private status, established and recognized by the State as the body
with competence at national level for promoting inbound tourism”. This is the role of most national tourist
boards.
The NTA prepares the national
tourism policy in coordination with other policies, notably economic, social or environmental. The policy is developed
in consultation with the representatives of professional trade associations and regional or local tourism
representatives. The national tourism policy establishes the main objectives, strategies and actions required with the
aim of preparing a general framework that is conducive to sustainable tourism development.
Some of the Report’s
findings were as follows: Of the 97 countries that responded
Ø 22 had a Ministry of Tourism (23%).
Ø Ministries of Tourism are more likely to be found
in East Asia and the Pacific and in South Asia.
Ø 30 had a Ministry responsible for tourism and
another sector: economy – (35%); culture - (14%); sport – (12%); transport – (9%).
Ø 25 had a Ministry responsible for Tourism but
Tourism was not in the title of the Ministry (26%).
Ø The comparison with the 1993 figures shows a
trend in all areas, except South Asia), to combine tourism with a Ministry responsible for economy.
Ø Whereas, in the past, tourism was often combined
with culture, this has ceased to be the case in Europe and the Americas, but remains so in East Asia and the Pacific
and in South Asia.
Ø There is a growing trend to combine tourism with
sport.
Ø There is a trend away from combining tourism with
transport.
Ø The executive bodies for tourism tend to be
departments (22%) or directorates (21%).
Ø Only a small number of countries have exclusive
Ministries of Tourism.
Ø 28 (29%) have Tourist Boards: In Africa (50%);
East Asia and the Pacific (31%); Europe (27%).
Ø In 60 (62%) the NTO has a public body status:
Europe (48%).
Ø In the Americas and Africa 27% of NTOs have
semi-public status.
Ø In Europe 3 (9%) of NTOs have private
status.
Ø Only 29% had NTO offices abroad.
Ø 45% had representatives abroad.
Changing Roles of
NTAs
Ø 63% have had their role in Government
strengthened: only 55% in Europe.
Ø 54% have been given greater autonomy for
directing national tourism policy.
Ø 43% have been given additional
responsibilities.
Ø 20% have lost responsibilities, but some of these
gained alternative responsibilities.
Ø 10% have abolished the NTA.
Ø 20% have integrated the NTA into a Ministry or
other government body responsible for another sector activity.
Ø 39% have decentralized some responsibilities to
the private sector.
Ø The Bali Forum emphasized the desirability of
extensive decentralization and of decision-making at the closest possible level to the tourism destination concerned,
while complying with existing legal frameworks in order to ensure homogenous development and adequate environmental
protection.
There needs to be
harmonisation of organizational involvement in the tourism sector. Tourism promotion and development should be the
exclusive domain of one body. It needs to be centralised in a particular agency that is subject to rigid guidelines
and is staffed by a commercially aware, financially sophisticated and experienced group of tourism professionals. The
objectives of the organization should be clear and job descriptions should be linked to those organizational
objectives. The national tourism organization should have strong leadership with clear statutory powers, authority and
responsibility. That leadership should have experience, appetite and credibility. As fiscal incentives are usually
the key issue in encouraging tourism development, the national tourism organization should have expertise in the
management of incentives in order to reassure the (often) sceptical Finance Ministry.
The staff of the national
tourism organization should be capable of liasing confidently, comfortably and effectively with other State (national
and provincial) and international bodies. Whilst the organization should be independent with a clarity of function,
and a clear locus of power and authority, that should not preclude it from having a useful synergistic relationship
with other State bodies. Organizationally, there needs to be a clear locus of responsibility for investment promotion
in the tourism sector. There also needs to be a real, substantial, transparent, investor-friendly legislative
framework.
The State should have a
Tourism Law which sets out the functions and powers of the national tourism organization and its relationship to other
Ministries, State bodies, advisory bodies and the private sector. The statutory responsibility for, and the
relationship between, tourism and cultural and heritage protection and promotion should be made clear. The legislation
should set out precise definitions of the entities and activities involved in tourism and these should reflect
international norms and conventions. Some kind of statutory national forum should be established comprising of
officials of Ministries and other public bodies whose activities affect or are affected by tourism. This forum should
address matters that require cross-Ministry solutions.
This standardisation of the
institutional framework for tourism facilitates regional co‑operation. It also ensures that potential investors
are clear about which institution is responsible for tourism development and promotion.
Standard Definitions of
Tourism Activities and Entities
Finance Ministries are often
cautious about the provision of fiscal incentives for the tourism industry because that industry is not clearly defined
and thus incentives may be claimed by those who are only nominally engaged in the tourism business. Thus, it is
imperative that there are clear statutory definitions of tourism enterprises such as tour operators, travel agencies,
tour guides, hotels, pensions, tourist transportation, etc. These may/should be accompanied by licensing systems the
principal purpose of which is to establish/maintain professional standards, training and qualifications and financial
security and rectitude. The legislation should set out the rights and obligations of these tourism service providers
and this should reflect international practice and conventions.
It is for these reasons that
most States have supplemented the general provisions on liability, discussed above, with specific regulations. These
provide protection to the tourist by:
· Regulating tourism service providers: e.g. by
registration, licensing, classification, setting minimum standards and qualifications etc.
· Regulating tourist transactions: penalising
false and misleading information; requiring full disclosure of relevant information; prohibiting unfair contract terms;
permitting the tourist to cancel in certain circumstances; rules governing the amount of compensation etc.
My Experience of Drafting
Tourism Laws
I have had the privilege of
drafting national tourism laws for many countries in the last 15 years and of assessing compliance with the acquis
communitaire by amongst others, Malta. My experiences include Albania, Moldova, Libya, Lesotho, Malawi, Eritrea,
Syria, Palestinian Territories, Kuwait, Jordan, Saudi Arabia, Bahrain, Maldives, Bhutan and Vietnam. Thus I have worked
in systems that are based in the Civil Law, Common Law, Islamic, Socialist or Buddhist legal traditions.
In all, I have firstly sought
out the roots of the traditions and imperatives of hospitality in their societies. We, in IFTTA, at previous
conferences, have explored the roots of the Civil and Common Law provisions on the protection of travellers and have
found them in the Judeo-Christian Scriptures in the story of Sodom and Gomorrah where God condemned the townspeople for
their abuse of travellers.
The root is the same in Islamic Law. In the Buddhist tradition they are implicit in the Ten Pious Acts and the
Sixteen Virtuous Acts of Social Piety. The principles can also be found in Confucianism.
The special privileges
afforded travellers (and in modern terms, tourists) are found in every society and are of ancient pedigree. My job, as
a legislative draftsman, has been to work out what those principles mean in the modern situation. Balancing the legal
relationship between guests and hosts can be fraught with difficulty. The UNWTO Global Code of Ethics in Tourism is a
useful tool.
We live in a world of
clichés. “Going forward”, “empowerment”, “global village”, “the
Internet superhighway” and, perhaps worst in terms of tourism, “globalisation”. But surely
globalisation is a “good thing”, bringing us all together, promoting peace and understanding, furthering
the “global civil society”? Lets remove the barriers, minimise our differences, embrace our brothers and
sisters, “my house is your house” as the Spanish say, we are all Jock Thomson’s bairns (children) as
we say in Scotland. But your home is not my home and surely that is the pleasure of it. I have gone out to meet you,
gone out from myself to discover the other. I want new experiences not a repetition of my existing ones. Newness rather
than sameness is the essence of tourism.
What is the point of this? We
are not all the same. For that we should be grateful! And that should be remembered when any policy, code, declaration,
regulation or law is being devised for the tourism sector. Tourism must be about diversity, going out to the other,
experiencing the new. Culture flourishes in diversity not in homogeneity. We are custodians of the heritage in our
lands not its owners. By its very nature it was created by others not us. If we can speak, as we do in environmental
matters, of “intergenerational equity”, of the different needs of future generations, we should likewise
acknowledge that our forefathers were different from us and though we may venerate what they created our experience of
it is different from theirs. Every heritage site will usually have layers created by other peoples or cultures and will
often be interpreted differently by those who visit it, depending on their own culture, experience or world
outlook.
Any globalisation that tends
to homogeneity is surely to be condemned in the tourism context and, indeed it is in the UNWTO Code of Ethics in
Tourism. Article 9(5) states
“…multinational enterprises in the tourism industry should not exploit the dominant
positions they sometimes occupy; they should avoid becoming vehicles of cultural and social models artificially imposed
on the host communities…”
The objective of the UNWTO is
to celebrate cultural diversity and the resurgence of local pride whilst nonetheless promoting tolerance and mutual
understanding.
It is the attempt to reconcile
these and such factors as:
· Economy and ecology
· Environment and
development
· Openness to international trade and
protection of cultural and social identities
Those pose the main problems
for the Tourism Law draftsman or woman.
Rights and
Ethical Values
The Global Code of Ethics for
Tourism speaks of human rights and refers to the right to tourism enshrined in the Tourism Bill of Rights 1985. It
encourages “sustainability” but does not mention the right to development, which was promulgated by the
Declaration on the Right to Development 1996 and reiterated in the Vienna Declaration on Human Rights 1993. Neither of
these are referred to in the preamble to the Code and, perhaps, with good reason. Some would argue that it is no right
at all but merely an aspiration. Does not the reference to an aspiration as a right devalue the meaning of fundamental
human rights and might not the same be the case with the “right to tourism”? In many states, activists are
campaigning for “animal rights” whereas the Code merely deals with animals as natural resources. There are
conflicting views about what “rights” are and who (or what) should exercise them.
The reference to
“ethical values common to humanity” may be difficult to determine in the tourism context. The Code refers
to “families” and family holidays. The right to a family and to a private life are enshrined in all
Declarations on Human Rights. However, what constitutes a family? There are now widespread differences and these have
impacted on the tourism sector. The Netherlands and Spain recognise marriages between the people of the same sex.
Similar recognition has been granted in Sweden and Denmark and a number of other countries are following suit. The
legal basis upon which this is justified is the recognition of the rights of its citizens to a family life and respect
for their private life. However, many other states do not recognise such unions and some are actively hostile to
homosexual people. The matter has already arisen in the refusal of some Caribbean islands refusing gay groups to
disembark from cruise ships and there was similar experience in Turkey despite there being no legal impediment in
Turkish Law.
In the USA a Danish woman was
prosecuted for leaving her child in a pram outside a shop whilst she went in to make her purchase. An action perfectly
acceptable in Denmark but judged as child-neglect in the USA. A French visitor who physically chastised his child in a
restaurant in Edinburgh was prosecuted in the Scottish courts, where such activity is prohibited, despite his protest
that the chastisement was considered appropriate in his own culture.
Thus, whose rights should
prevail? What are the common ethical standards? Even where reference is made to respect for the customs and standards
of the host country, are these those of the “local community” or of the “indigenous population”
as these might not be the same.
Difference in
Legal Cultures
The difference in legal
cultures inevitably affects the way that the Code of Ethics, or Declarations on Sustainable Development of Tourism or
on Poverty Alleviation are interpreted in each country. This has been borne out by experience of laws that are intended
to have the same effect in each jurisdiction but in practice are interpreted differently. The Warsaw Convention, which
governs airlines’ liability to their passengers, has been adopted by most countries in the world. Airlines are
automatically liable for injuries sustained by passengers on board, embarking or disembarking from aircraft. However,
some states interpret the word "“injury” as solely meaning physical injury whilst others hold that it
includes mental suffering. This latter is particularly important, for example, in the case of terrorist attacks where a
passenger suffered no physical harm but suffered emotional trauma. Thus, in practice there are many versions of the
Warsaw Convention around the world. The Montreal Convention does not address this.
The difference is also
highlighted when it comes to rights. The Preamble to the Global Code of Ethics in Tourism cites two documents from
1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The former reflects western legal approaches i.e. the importance of the rule of law and that civil and
political rights should be granted irrespective of economic, social or cultural conditions. The second declaration
reflects non-western approaches which respect normative and flexible declarations and which hold that rights have to be
considered in the context of existing realities. Western legal systems tend to place little importance on such
declarations.
Article 1(4) sets out the
obligation of public authorities to respect the safety and security of travellers and calls upon them to
“severely” condemn and punish attacks, assaults, kidnaps and threats to tourists or tourism workers. This
is also applied to damage to property. “Severity” of condemnation and punishment will vary greatly from
state to state. What about the destruction of statues, effigies and emblems venerated by one regime and despised as
symbols of oppression by its successor?
The Value of the
Code
An eminent English jurist,
writing of Law in a changing economic climate stated that one of the distinctive features of Commercial Law is that
“…its fabric includes the extra-legal usages, customs and codes of behaviour of the business
community”. 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, such as the UNWTO Code, are expressed in plain language, are 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. Nonetheless, they have sanctions to
encourage compliance. Perhaps most important in the commercial sphere is the threat of bad publicity which can
seriously undermine an expensive marketing campaign. The non-compliant trader can also find themselves subject to
disciplinary procedures, suspended or excluded from membership. Other members may refuse to trade with them.
My objective has been to
enshrine those parts of the Code that have direct practical application into the main tourism legislation. This
includes the principles of sustainable development of tourism. Thus, in the new Draft Tourism Law for Bhutan the
following Article is included:
Section 22: Sustainable Development of Tourism.
1.
The Government shall ensure the sustainable development of tourism in line with the cultural
heritage, traditions and customs of the Bhutanese people.
2.
The sustainable development of tourism shall be secured by the observance of the following
sustainable tourism principles:
(a) tourism planning, organisation and
implementation at the local level shall be an integral part of the sustainable development of tourism at the national
level;
(b) involvement of different public
bodies, the private sector, professional and trade associations and the population in the planning
process;
(c) tourism planning and management in
keeping with the protection of the environment and natural resources;
(d) equitable distribution of
advantages and costs among tourism promoters, dzongkhags and gewogs and the population in host areas;
(e) information, education, motivation
and involvement of the local population in the process of tourism facility development;
(f) preliminary assessment of tourism
facility projects and their possible impact after implementation;
(g) involvement of the local population
in the formulation of collaborative programmes designed to optimise tourism implementation;
(h) monitoring
implementation.
3.
In furtherance of the provisions of Sections 21, 22, 23 and 27 of this Act, the Government and
its agencies shall;
(a) ensure the rational use of tourism
resources and the promotion of environmental conservation and protection measures in accordance with the National
Tourism Development Strategy and annual tourism development programmes, approved by the Government;
(b) promote the public interest in the
area of tourism;
(c) contribute to the development of
the tourism industry through direct investment in general and tourism infrastructure;
(d) support tourism at the local level
through the creation of adequate conditions for the development of tourism infrastructure;
(e) ensure the security, protect the
rights, interests and property of tourists;
(f) collaborate with other
Governments and international organisations in the field of tourism through the adoption, and implementation, of
international treaties;
(g) ensure that the Ministry of Foreign
Affairs creates a favourable entry visa regime for foreign tourists coming to Bhutan;
(h) facilitate the provision of
necessary tourist facilities at the border-crossing points;
(i) encourage monitoring
mechanisms.
The provisions in this Article
are based on the UN and UNWTO principles on sustainable development of tourism and on the UNWTO Global Code of Ethics
for Tourism.
The following Article
states:
Section 23: Principles of Tourism Resources Protection and
Exploitation.
1.
Tourism resources shall be protected, enhanced and exploited so as to maximise their economic
potential but consistent with the principles laid down in Section 22 of this Act.
2.
The Government shall uniformly administer tourism resources across the country and issue
synchronous policies and measures for the protection and upgrading of tourism resources for sustainable
development.
Whilst Article 23 focuses on
sustainability, this Article focuses on economic development. The issue of synchronicity of policies is a vital
one.
A good code should remove
abuses, promote higher standards, clarify areas of doubt and provide machinery for the proper handling of complaints.
Thus, in the legislation we have encouraged, and provided assistance to tourist trade associations to adopt and adapt
the Global Code of Ethics in Tourism. We have made plain that, if the code is to work, the professional association
responsible for its enforcement must have the will and enthusiasm to be more than a self-protection
organisation.
The problem with
professional codes in the past has tended to be threefold:
· Lack of
comprehensiveness : Either they do not cover all of the activities in which members
engage or are not frequently updated to take into consideration new practices
· Absence of investigative
powers : members will usually resent interference from peers and may fear breach of
commercial confidentiality. Thus associations are usually dependent on the public pursuing complaints and an after the
fact approach.
· Ineffective
sanctions : there is often a lack of political will to discipline members.
Furthermore, a decision to refuse to trade with an errant member may be judged a rstrictive practice or breach of
anti-trust regulations by the courts.
A distinction can be made,
however, between a self-regulatory code and one that is devised by a person or body that is not a member of the group
whose activities it regulates. These codes tend to be looked upon with more favour by the courts. They are seen to
establish objective standards and are particularly valued when the enforcement mechanism is independent of the group to
whom the code applies.
Thus, in many of the countries
I have worked we sought to substantially influence the trade associations in drafting the professional code. We provide
incentives, such as exemptions from some parts of the licensing requirements, bonding, insurance etc. where we are
confident that the trade association maintains an effective discipline of its members.
The appropriateness of
exclusively national regulation will increasingly diminish in the contemporary context. While it is necessary to seek
to adhere to actual and emerging national legal norms, the reality is that the optimum response may occur through legal
regulation at a regional level. Regulation at a regional level refers to regulation via legal communities such as the
EU in Europe, MERCOSUR or NAFTA in the Americas, the GCC in the Arabian Gulf States and, in an African context, ECOWAS
or SADC. In Eastern Asia, there is ASEAN and the ASEAN-China Free Trade Association. As States are increasingly
integrated in emerging regional legal communities, the likelihood is that legal regulation will occur at that level.
Such regional legal developments in turn will influence the development of International Law.
Worldwide, there is a process
of convergence of Travel and Tourism Law. The development of International Law itself is a reflection of convergence.
"Convergence" has been a popular term in the communications technology context as an explanation of the coming together
of hitherto discrete technologies, formerly separated in distinct compartments, but increasingly joined together by
technology. In addition to this technological convergence there are the various types of legal convergence.
Globalisation could be seen as a process of convergence. The fact that it is often a process of legal convergence has
largely been ignored.
At the same time as there are
powerful forces of convergence, harmonisation and standardisation; there is a need for sensitivity to specific regional
factors. It would be a mistake to project an EU model wholesale onto Viet Nam, for example. Viet Nam is at a unique
stage on the trajectory of institution building. The natural, physical, political, socio-economic and cultural
conditions are distinct. Nevertheless the value of Law as part of a holistic approach to development at a regional
level must be clear.
In drafting Tourism Laws it is
important to take into account the international harmonisation process whilst respecting the political, legal,
socio-economic framework and customs and traditions of the country for which it is drafted.
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