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

1. Soft Law or Hard Law: How to Ensure Sustainable Development of Tourism and Help the Poor in the Economic Turndown John J Downes International Travel and Tourism Law Consultant

2. Economic Development and/or Tourism Development • UNWTO Report on NTAs and NTOs • Confused patterns • Economic Development or “Tourism as a Special Case”? • In which Ministry does Tourism belong, if any? • Tourism Development Agencies

3. Legal Framework • Creating a Legal Framework which fosters and underpins the development of Tourism • Ensuring that the State body responsible for Tourism is efficient, dynamic and works within legal norms • Strengthening the NTA and/or NTO • Creating a supportive structure for the private sector

4. Providing a framework for cooperation between the public and private sectors • Clearly defining the Tourism Industry • Streamline legal processes for tourism enterprises • Facilitating the development of professional standards

5. Ethical Underpinning • Enshrining the principles of Sustainable Tourism Development • Facilitates Poverty Alleviation • Is consistent with the UNWTO’s Global Code of Ethics in Tourism

6. The Law should cover: • Tourism Development Areas • Tourism Development Committee and or PPP organisation • Tourism Development Fund • Financial assistance mechanisms • Standards, licensing, classification, registration • Inspection and Enforcement mechanisms • Accountability mechanisms and Annual Reports

7. Sustainable Development of Tourism • Tourism planning, organisation and implementation at the local level shall be an integral part of the sustainable development of tourism at the national level; • Involvement of different public bodies, the private sector, professional and trade associations and the population in the planning process; • Tourism planning and management in keeping with the protection of the environment and natural resources; • Equitable distribution of advantages and costs among tourism promoters, local government and the population in host areas; • Information, education, motivation and involvement of the local population in the process of tourism facility development;

8. Sustainable Development of Tourism • Preliminary assessment of tourism facility projects and their possible impact after implementation; • Involvement of the local population in the formulation of collaborative programmes designed to optimise tourism implementation; • Monitoring Implementation; • 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; • Promote the public interest in the area of tourism; • Empowering community enforcement.

9. Soft Law and the Millennium Development Goals • Encouraging the travel industry to adopt voluntary codes of ethical tourism standards. • A good code should remove abuses, promote higher standards, clarify areas of doubt and provide machinery for the proper handling of complaints. • Domestic Tourism legislation should encourage, and provide assistance to, tourist trade associations to adopt and adapt the Global Code of Ethics in Tourism and the MDG Principles. • 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.

10. 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 restrictive practice or breach of anti-trust regulations by the courts.

11. 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.

12. Hard Law and the Millennium Development Goals • There should be coordination of institutional and inter-sectoral activity, adequate personnel training and capacity-building plans for public authorities involved in tourism development; • Speedy and efficient legal processes for indemnifying the negative impact on the environment and communities, and compensatory provisions to cover any damage to the environment and society as a whole. • Tourism and related legislation should support and encourage the private sector to follow a sustainable and pro-poor approach to tourism. • Governments of developing countries need to enshrine a policy of pro-poor sustainable tourism development in legislation and, where appropriate, in local regulations.

13. Soft Law or Hard Law: How to Ensure Sustainable Development of Tourism and Help the Poor in the Economic Turndown John J Downes International Travel and Tourism Law Consultant