Soft Law or Hard Law: How to Soft Law or Hard Law: How to Ensure Sustainable Development Ensure Sustainable Development of Tourism and Help the Poor in of Tourism and Help the Poor in

the Economic Turndownthe Economic Turndown

John J DownesJohn J Downes

International Travel and International Travel and Tourism Law ConsultantTourism Law Consultant

Economic Development and/or Economic Development and/or Tourism DevelopmentTourism Development

UNWTO Report on NTAs and NTOsUNWTO Report on NTAs and NTOs Confused patternsConfused patterns Economic Development or “Tourism as a Economic Development or “Tourism as a

Special Case”?Special Case”? In which Ministry does Tourism belong, if In which Ministry does Tourism belong, if

any?any? Tourism Development AgenciesTourism Development Agencies

Legal FrameworkLegal Framework

Creating a Legal Framework which fosters Creating a Legal Framework which fosters and underpins the development of Tourismand underpins the development of Tourism

Ensuring that the State body responsible for Ensuring that the State body responsible for Tourism is efficient, dynamic and works Tourism is efficient, dynamic and works within legal normswithin legal norms

Strengthening the NTA and/or NTOStrengthening the NTA and/or NTO Creating a supportive structure for the Creating a supportive structure for the

private sectorprivate sector

Providing a framework for cooperation Providing a framework for cooperation between the public and private sectorsbetween the public and private sectors

Clearly defining the Tourism IndustryClearly defining the Tourism Industry

Streamline legal processes for tourism Streamline legal processes for tourism enterprisesenterprises

Facilitating the development of Facilitating the development of professional standardsprofessional standards

Ethical UnderpinningEthical Underpinning

Enshrining the principles of Sustainable Enshrining the principles of Sustainable Tourism DevelopmentTourism Development

Facilitates Poverty AlleviationFacilitates Poverty Alleviation

Is consistent with the UNWTO’s Global Is consistent with the UNWTO’s Global Code of Ethics in TourismCode of Ethics in Tourism

The Law should cover:The Law should cover:

Tourism Development AreasTourism Development Areas Tourism Development Committee and or PPP Tourism Development Committee and or PPP

organisationorganisation Tourism Development FundTourism Development Fund Financial assistance mechanismsFinancial assistance mechanisms Standards, licensing, classification, registrationStandards, licensing, classification, registration Inspection and Enforcement mechanismsInspection and Enforcement mechanisms Accountability mechanisms and Annual ReportsAccountability mechanisms and Annual Reports

Sustainable Development of TourismSustainable Development of Tourism Tourism planning, organisation and implementation at the Tourism planning, organisation and implementation at the

local level shall be an integral part of the sustainable local level shall be an integral part of the sustainable development of tourism at the national level;development of tourism at the national level;

Involvement of different public bodies, the private sector, Involvement of different public bodies, the private sector, professional and trade associations and the population in professional and trade associations and the population in the planning process; the planning process;

Tourism planning and management in keeping with the Tourism planning and management in keeping with the protection of the environment and natural resources; protection of the environment and natural resources;

Equitable distribution of advantages and costs among Equitable distribution of advantages and costs among tourism promoters, local government and the population in tourism promoters, local government and the population in host areas;host areas;

Information, education, motivation and involvement of the Information, education, motivation and involvement of the local population in the process of tourism facility local population in the process of tourism facility development;development;

Sustainable Development of Sustainable Development of TourismTourism

Preliminary assessment of tourism facility projects and Preliminary assessment of tourism facility projects and their possible impact after implementation;their possible impact after implementation;

Involvement of the local population in the formulation Involvement of the local population in the formulation of collaborative programmes designed to optimise of collaborative programmes designed to optimise tourism implementation;tourism implementation;

Monitoring Implementation;Monitoring Implementation; Ensure the rational use of tourism resources and the Ensure the rational use of tourism resources and the

promotion of environmental conservation and promotion of environmental conservation and protection measures in accordance with the National protection measures in accordance with the National Tourism Development Strategy and annual tourism Tourism Development Strategy and annual tourism development programmes, approved by the development programmes, approved by the Government;Government;

Promote the public interest in the area of tourism;Promote the public interest in the area of tourism; Empowering community enforcement.Empowering community enforcement.

Soft Law and the Soft Law and the Millennium Development Millennium Development

GoalsGoals Encouraging the travel industry to adopt voluntary Encouraging the travel industry to adopt voluntary

codes of ethical tourism standards.codes of ethical tourism standards. A good code should remove abuses, promote higher A good code should remove abuses, promote higher

standards, clarify areas of doubt and provide standards, clarify areas of doubt and provide machinery for the proper handling of complaints. machinery for the proper handling of complaints.

Domestic Tourism legislation should encourage, and Domestic Tourism legislation should encourage, and provide assistance to, tourist trade associations to provide assistance to, tourist trade associations to adopt and adapt the Global Code of Ethics in Tourism adopt and adapt the Global Code of Ethics in Tourism and the MDG Principles.and the MDG Principles.

If the code is to work, the professional association If the code is to work, the professional association responsible for its enforcement must have the will and responsible for its enforcement must have the will and enthusiasm to be more than a self-protection enthusiasm to be more than a self-protection organisation. organisation.

The problem with professional codes in the past The problem with professional codes in the past has tended to be threefold:has tended to be threefold:

Lack of comprehensivenessLack of comprehensiveness : Either they do not  : Either they do not cover all of the activities in which members cover all of the activities in which members engage or are not frequently updated to take into engage or are not frequently updated to take into consideration new practices.consideration new practices.

Absence of investigative powersAbsence of investigative powers : members will  : members will usually resent interference from peers and may usually resent interference from peers and may fear breach of commercial confidentiality. Thus fear breach of commercial confidentiality. Thus associations are usually dependent on the public associations are usually dependent on the public pursuing complaints and an after the fact pursuing complaints and an after the fact approach.approach.

Ineffective sanctionsIneffective sanctions : there is often a lack of  : there is often a lack of political will to discipline members. Furthermore, political will to discipline members. Furthermore, a decision to refuse to trade with an errant member a decision to refuse to trade with an errant member may be judged a restrictive practice or breach of may be judged a restrictive practice or breach of anti-trust regulations by the courts.anti-trust regulations by the courts.

A distinction can be made, however, between a A distinction can be made, however, between a self-regulatory code and one that is devised by a self-regulatory code and one that is devised by a person or body that is not a member of the group person or body that is not a member of the group whose activities it regulates.whose activities it regulates.

These codes tend to be looked upon with more These codes tend to be looked upon with more favour by the courts. They are seen to establish favour by the courts. They are seen to establish objective standards and are particularly valued objective standards and are particularly valued when the enforcement mechanism is independent when the enforcement mechanism is independent of the group to whom the code applies.of the group to whom the code applies.

Thus, in many of the countries I have worked we Thus, in many of the countries I have worked we sought to substantially influence the trade sought to substantially influence the trade associations in drafting the professional code. associations in drafting the professional code.

We provide incentives, such as exemptions from We provide incentives, such as exemptions from some parts of the licensing requirements, bonding, some parts of the licensing requirements, bonding, insurance etc. where we are confident that the trade insurance etc. where we are confident that the trade association maintains an effective discipline of its association maintains an effective discipline of its members.members.

Hard Law and the Hard Law and the Millennium Development Millennium Development

GoalsGoals There should be coordination of institutional and inter-There should be coordination of institutional and inter-

sectoral activity, adequate personnel training and sectoral activity, adequate personnel training and capacity-building plans for public authorities involved in capacity-building plans for public authorities involved in tourism development; tourism development;

Speedy and efficient legal processes for indemnifying the Speedy and efficient legal processes for indemnifying the negative impact on the environment and communities, and negative impact on the environment and communities, and compensatory provisions to cover any damage to the compensatory provisions to cover any damage to the environment and society as a whole. environment and society as a whole.

Tourism and related legislation should support and Tourism and related legislation should support and encourage the private sector to follow a sustainable and encourage the private sector to follow a sustainable and pro-poor approach to tourism.pro-poor approach to tourism.

Governments of developing countries need to enshrine a Governments of developing countries need to enshrine a policy of pro-poor sustainable tourism development in policy of pro-poor sustainable tourism development in legislation and, where appropriate, in local regulationslegislation and, where appropriate, in local regulations. .

Soft Law or Hard Law: How to Soft Law or Hard Law: How to Ensure Sustainable Development Ensure Sustainable Development of Tourism and Help the Poor in of Tourism and Help the Poor in

the Economic Turndownthe Economic Turndown

John J DownesJohn J Downes

International Travel and International Travel and Tourism Law ConsultantTourism Law Consultant