CC BY
96REVIEW OF LAW SCIENCE
Special Issue (2020)
E-ISSN: 2181-1148
12.00.10-International law. Usmanova Surayyo,
Acting Associate Professor of University of World Economy and Diplomacy,
PhD in Law, ORCID: 0000-0002-6624-7685 E-mail: [email protected] DOI: 10.24412/2181 -1148-2020-120-135
THE CONCEPTUAL ISSUES OF INTERNATIONAL-LEGAL REGULATION OF TOURISM
A R T I C L E I N F O
A B S T R A C T
Keywords:
Convention, Declaration, doctrine,
International law, norms, law,
regulation, sphere, theory, tourism.
The development of international tourism enables states to adopt solutions to various issues. International norms on tourism coordinate these relations through "Soft power" and cooperation. International-legal norms as the basis and sources of international law set main directions of international relations and cooperation process in the field of tourism, and simultaneously differ from other sources with its «Soft law» character. It is required to conduct scientific research on accelerating international-legal tourism regulation by states and organizations worldwide. Hence, the vital role has been emphasized in conducting scientific research in analyzing the legal framework of the strengthening the legal regulation of tourism, internationallegal cooperation aimed at the regulation of certain negative aspects, which affect the development of societies and the implementation of international standards into national legislation. The author examines the issues related to international tourism law formation as a new sphere in international law science. In particular, the polemics and international experience were analyzed in determining the vitality of this sphere. The conceptual and theoretical views on the development of the internationallegal basis of tourism have been researched by the author.
Accordingly, the researcher emphasized the notion of "tourism" and its international-legal regulation from the perspectives of international law science. Furthermore, this paper discusses the facts on elaboration on the special principals of international tourism law. Moreover, proposals and recommendations on the further development of international legal regulation of tourism are presented.
Introduction.
In the 21st century, the harmonization of tourism with the achievement of sustainable development goals in the world confirms the topicality of the legal regulation of tourism. The first Universal «Framework Convention on Tourism Ethics» of the United Nations World Tourism Organization (UNWTO) from 2017 underlined: «to develop tourism to contribute to economic development, international
understanding, peace, prosperity and universal respect for, and observance of, human rights and freedoms for all without any distinction». With this regard, considerable focus has been on enhancing the international legal framework of the tourism sphere and the perfection of internationallegal norms on tourists' rights and responsibilities.
As around the system-forming phenomenon of civilization, tourism developed around the world diversified relations of priority importance for the economy, culture, politics, and social sphere of many states.
Tourism has become one of the essential coordinates of humanity at the beginning of this millennium. Beyond enumeration, figures, interpretations, tourism is a living reality that cannot be ignored by anyone, as it turned out to transform, from a luxury time spending, reserved to the privileged persons or groups, into a current need for more and more people [1, P.45]. Here, the theoretical and conceptual aspects of the international-legal normative regulation of this sphere require more complex analyses and research.
The legal notion of tourism.
Tourism is considered to be one of the widely used terms through the subjects of international relations and international law. Having a long history, tourism has not received a unanimous definition and has been interpreted differently, "till now there is no single definition on the treatment issues of the meaning of tourism and its notion" [2, P.6].
Initially, the Committee on Statistics of the League of Nations
handled the development of tourism terminology, which published definitions of «tourist» for the first time in 1937. In particular, foreign tourists were people who stayed in the country for more than 24 hours. The motivations for travel were visiting for pleasure and business, and people staying in a representative capacity were also deemed to be tourists [3]. After the Second World War, the International Union of Official Tourism Organizations was engaged in the processing and formation of tourist terminology and definitions, which was transformed into the World Tourism Organization in 1975. Unlike the League of Nations, the IUOTO (the International Union of Official Tourism Organizations) recommended that "students and young persons in boarding establishments or schools" to be regarded as tourists [4].
Moreover, several
international norms defined tourism from various perspectives. In particular, In the Manila Declaration on World Tourism in 1980, tourism is defined as "an activity of great importance in people's lives due to direct impact on the social, cultural, educational and economic life of states and their international relations" [5]. We can observe that The Hague Declaration defines tourism as a
multidirectional aspect of people's present life, which combines functioning, activity, and decisive factor.
In the Code of UN WTO (United Nations World Tourism Organization), it is emphasized that «tourism, the activity most frequently associated with rest, sport and access to culture and nature, should be planned and practiced as a privileged means of individual and collective fulfillment; when practiced with a sufficiently open mind, it is an irreplaceable factor of self-education, mutual tolerance and for learning about the legitimate differences between people and cultures and their diversity» [6]. Finally, the last International Convention - the UNWTO Framework Convention on Tourism Ethics from 2017, defines the tourist as following: «tourist means a person taking a trip which includes an overnight stay to the main destination outside his/her usual environment, for less than a year, for any main purpose (business, leisure or another personal purpose) other than to be employed by a resident entity in the country or place visited" [7].
Here, it would be considered to emphasize the national legislation concerning tourism, which noted that "tourism -departures (travel) of an individual
from a permanent place of residence without engaging in activities related to earning income from sources in the country (place) of temporary stay" [8]. It should be noted that the definition which is given by the national authority does not differ a lot from the international legal norm notion. Here, we should emphasize that all of these definitions pointed out the term "tourism" only from one side - as the movement of the person, however the theoretical issue of tourism as the sphere did not mention by the international legislation.
The doctrinal-theoretical view of "tourism".
A definition proposed by the International Association of Scientific Experts in the field of tourism is considered an essential description among the specialists. Namely, tourism is «a set of relationships and phenomena that arise during the movement and stay of people in places other than their permanent place of residence and work" [9, P.28].
Tourism is a complex phenomenon, which is extremely difficult to define precisely. This is hardly surprising because it involves not only tourists, but also tourism service providers, government role players, and host communities. It often has a significant impact on many other
spheres of human activity as well as artificial and natural environments. It is nevertheless necessary to have a generally accepted definition of the concept to enable scientifically valid research in the field [10]. Foreign academicians emphasized that tourism can be defined as the processes, activities, and outcomes arising from the relationships and the interactions among tourists, tourism suppliers, host governments, host communities, and surrounding environments that are involved in attracting and hosting of visitors [11, P.4].
According to scientists of Uzbekistan, tourism is considered to be a diversified phenomenon of the present world, which occurs generally as functioning; the combination of movements to receive the exact type of product, as a branch (agricultural branch); mix of a particular group of manufacturers on doing touristic business (tourism service); as the social notion, which presents sphere of entrepreneurship in the condition of market regulation of touristic services [12, P.17].
From our point of view, multisidedness of this approach shows the absence of a unique and single definition of this term, which leads us to conduct a research and forward our
consideration of «tourism». Moreover, a national researcher is based on an American professor's conception and systematic approach of tourism, which consists of three elements: geographic component, tourists, and tourism industry [13, P.6]. This approach shows the complexity of tourism.
Thus, considering the definitions of tourism which were analyzed by the author are based on the following features:
- Tourism is the result of the movement of people;
- Tourism always includes two elements: traveling to the destination and stopping there;
- It means a departure from the country (or region or place) where the tourist permanently resides;
- It is a temporary tourist movement on the tourist route.
International-legal aspects of tourism.
The term "tourism" is used in one of the spheres of public international law, i.e., international economic law. Namely, K.Z. Alimov determined it as the object of international economic law commercial relations in the spheres such as manufactory, scientific-technical, monetary-financial, transport, intercourse, energy, intellectual property,
tourism, etc. [14, P.248]. Hence, international economic law uses "tourism" as the object of this sphere of law, which determines one of the objects of commercial relations.
Now, it is time to discuss another issue connected with theoretical and international-legal aspects of tourism and discussable in international law -the notion of international tourism law.
Presently, with the development of national and international tourism, the special institution or branch - international tourism law is in the process of forming in foreign literature. According to K.G.Borisov and T.S.Ragimov, international tourism law- is the complex of principles and norms, which regulate the functioning of states in the field of tourism and international travel in terms of satisfaction a wide range of cultural and spiritual demands of people [15, P.238]. The authors identified the term «international tourism law» with the existence of its norms and principles and underlined as a new institution of international law.
According to Alekseeva, international tourism law is the complex of principles and norms, which regulates activities of the states in the sphere of tourism and international trips for the
satisfaction of a wide circle of cultural and spiritual necessities of human being, and also determines the relations of partnership and collaboration of international and national organizations in the field of tourism and international trips. Furthermore, the object of international tourism law comes forward as the complex of international relations in the sphere of tourism [16, P.4]. Here, we could observe that the researcher did not announce international tourism law as a branch or institution of international law. He also outlined the object of international tourism law, which is considered an integral part of any institution and branches of law theory.
Here, it would be plentiful affirming relations in the sphere of tourism by referring points of I.V. Markina, who noted that international tourism relations are considered to be complex. They consisted of regulated relationships by public international law; relations involving foreign legal entities governed by the norms of private international law; relationships arising from tourist exchanges that are not confined to their participating states' territory and are subject to legal regulation at the international level. Beforehand, in general, relations
between states are within the scope of regulation of international law. Bilateral and multilateral relations, in which issues of foreign tourists' legal status, classification of tourist visits, entry to and exit from the host country, tourist statistics, unification and standardization of passports, procedures for their issuance, visa and customs formalities, currency control formalities are regulated. The second group consists of relations between states and international intergovernmental tourism organizations, including membership in these organizations, as well as the relationships between
intergovernmental tourism
organizations. Specified
relationships can be ultimately qualified as interstate as each international intergovernmental organization is a form of association of states. However, along with them, there are also international relations with a foreign element or an international element. These are relations of states with legal and individuals who are engaged in tourist activities and under the jurisdiction of other states, as well as with international nongovernmental tourism organizations and international economic
associations in the field of tourism. Such relationships are all in more
fall into the sphere of regulation of public international law. Spheres as International Economy Law or International Humanitarian Law possess similar relations [17, P.2-3].
Based on this fact academician outlines about the existence of the formulating process of new branch international tourism law. From our consideration, the uniqueness and peculiarities of these relations should be underlined - as relations in the field of tourism which occur between states, and international organizations,
(aspects of public international law); between states and national and nongovernmental
organizations (public and private international law) and between physical and juridical bodies of states (private international law). In the last-mentioned case, we should note that there are sources of international tourism law, which are signed by the states, and obeyed by the tourists and tourist providers of signed governments. International norms, which regulate tourist activity are contained in the International Hotel Convention (1979) and International Convention on contract for a trip (1970). Convention serves as a basis at the consideration of conflicts between tourist agencies and
agents, from one side, and by tourists and international travelers - from other - on questions of violation of terms of contracts. The concept of two types of agreements was first given in this Convention - with the organizer of trips and with a mediator on the organization of trips. Thus, today, international relations between countries with a developed democracy are mediated not only by the representative bodies of the state but also they are directly implemented [18, P.295]. These Conventions show the international private law character of the relations in the sphere of tourism.
Moreover, T.S.Ragimov who stated that it is a new institution of international law, in his article determined the principles of international tourism law, which were formulated according to the international- legal sources in the sphere of tourism [19, P.605]. To the number of such principles, it is possible to take the followings:
1. Every human has the right to rest and leisure, including a right on reasonable limitation of working day and on a pay vacation, and also right for a free movement without limitations (article 1, Charter of tourism, 1985);
2. Freedom of movement and absence of discrimination.
(Roman Conference of the UNO on tourism and international trips, 1963); This principle is also based on human rights connected with tourism activity- movement from one place to another and outlined non-discrimination in this field.
3. Assistance to the well-organized and harmonious raise of both internal and international tourism (the Article 3, Charter of tourism); and also coordination of different parties of scientific activity in the field of tourism (Roman Conference of the UNO on tourism and international trips, 1963);
4. Assistance to the access of tourists to public property of the visited places based on existent documents of the UNO, and another international organizations' acts (Article 4, Charter of tourism, Hague declaration on tourism, 1989);
5. Assistance from the tourists' point to the mutual understanding and friendly relations between people, both on national and at an international level, to peacekeeping (Article 10, Charter of tourism and Final Act of Conference on safety and collaboration in Europe, 1975);
6. Every human has the right to notify the representatives of legal official bodies and public organizations about the necessities in maintaining the right
to leisure and travel (Article 14, Charter of tourism); We consider, the current principle is connected with the national legislation of governments and affirm the participation of official bodies and organizations in the process of tourism activity. Therefore, the importance of it preferable to be accepted by the states.
7. Possibility of the wider range of the population to have a rest and to travel (Document of Acapulco, 1982); Here, all social parties of each society, as different races, nations, people with disabilities, all-gender representatives' etc. participation in tourism are mentioned.
8. The defense and raise of tourism resources (The Hague Declaration on tourism). This principle was not mentioned by T.S. Ragimov, however, Alekseev determined it as the last principle of international tourism law. When ecological issues and peacekeeping are considered basic components of sustainable development goals of the UNO, most tourism destinations are connected with before mentioned aspects, and their defense is important to form a theoretical and practical point of view. Therefore, it is considered to save this principle in this list.
These principals are based on international- legal norms,
which will be analyzed by the researcher. Based on international-legal documents, general principles of international tourism law were set forth, which are considered to be a part of the national legal system of the majority of states. Moreover, they are integral components of International tourism law, are actual presently. Basing on E.T.Usenko, the existence of the branches' principles in international law, which emerged from the general principles of international law also shows the existence of a new branch [20, P.34]. However, it should be noted that there is no single codified international document or single doctrinal consideration on the principles of international tourism law. As mentioned above they included different international norms, which have a connection with tourism.
Moreover, noting the requirements for the field of international law, A.N. Vilegzhanin and Y.M. Kolosov also pointed to the "presence of codification of Conventions « (meaning a high degree of universal codification) which regulates the relations between the subjects of international law in a certain area of international relations, and which have principles that apply specifically to the regulation of
relations in this area ("branch principles") [21, P.42]. Now, we could not announce the presence of a high degree of universal codification in the sphere of tourism, because of its norms' the «soft law» character, which will be discussed in the next paragraph. Most of the norms in the field of tourism are considered to be the «Soft law» character, obeying them in the will and interest of states, because of tourism influence on the social and economic development of society. Here, one of the important principals of International Law as «pacta sund servanda» should be considered as a fact, which determines state-participants' obedience to the signed agreements in the field of tourism. It shows the law enforcement practice of states, which follow universal excepted norms in the national law-making process.
In this regard, our attention was attracted by the work published in 2011, in which the author, in addition to confirmation "duty" thoughts that "the branch of law includes institutions and institutions consist of norms" [22, P.152] (not indisputable, as we know), emphasizes something else: "The system of law is predetermined by nature the primary source — the objective basis, the essence of law, and the
parameters for the development of economic and other activities of society" [23, P.155]. As we underlined before, there is no discussion on the existence of the last parameters in the sphere of tourism.
As mentioned by foreign scientists, an important component of allocating a separate branch in the law is its scientific significance. That is, such a selection (outline) does not occur for the sake of allotments. The system of the law branch is the integrity of interrelated elements: characteristic principles, contractual and customary norms, sub-sectors, and institutions [24, P.177].
Furthermore, in the world practice, it is observed that the existence of international tourism law and European tourism law subjects (courses) in foreign universities, which examines the regulation of domestic and international tourism and analyses key current issues arising in the subject area. It aims to provide students with the understanding and insights required to provide specialized legal and policy advice to the many stakeholders in tourism, including governments, investors, developers, operators, marketers, special interest groups, local communities, and tourists themselves [25].
Last but not least, functioning international tourism law institute as a private institution to further teaching, research, and publication activities in the field of tourism law and undertake research directed to identifying international best practice in the regulation of tourism and travel and developing sustainable solutions to the problems faced by the industry, government, and host communities particularly in developing countries [26] also showed the attention to international-legal regulation of tourism in the world.
Conclusion.
Having analyzed various definitions by both international and national legal norms and academicians' view, the term «tourism» can be defined as following: "Tourism - is a complex phenomenon, which combines sphere of the economy from one side, and functioning of a human being (as a tourist) from another side. As a sphere of economy, tourism is connected with a diversity of directions, as management, entrepreneurship, business, agriculture, architecture, and other related fields. The second meaning which is connected with activity may be defined that, tourism is a function which is executed (fulfilled) by a tourist from the moment of his
trans-border or internal movement from his usual environment regulated by international-legal norms, bilateral agreements, and national legislation. Here the important factor is that the motive of tourist should not be to earn an economic profit (not migration, not to work); in fact, it should be connected with pleasure, entertainment, education, sport, and other aims, which are linked with personal, cultural and spiritual functioning, and not exceed a year".
The particular importance of before mentioned considerations, justified with varying degrees of scientific depth and acquired the process of forming a new branch of international law, such as international tourism law. Hence:
- re-affirming the role of international-legal norms and formulating principles in the sphere of legal regulation of tourism;
- underlining "soft law" character of international-legal norms in this sphere;
- peculiarities of the object in international tourism law and sources (public and private law character) which were above analyzed.
It could be announced that «International Tourism Law» is considered to be formulating (but not in the final stage of acceptance by the world authority (lack of international-legal/ high degree of universal codification) and academicians (absence of a single doctrinal approach)) new branch of international law and defined as follows: «International Tourism Law is that developing area of international law consisting of formulating international-legal norms and principles, which regulates the relations of subjects of international law in the sphere of tourism». With this regard, future researches lead us to formulate and further develop the issue of "tourism" in terms of its theoretical and international-legal aspects more deeply.
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