Implementation of the Global Code of Ethics for Tourism

The Global Code of Ethics for Tourism and the World Committee on Tourism Ethics 393

D. Implementation of the Global Code of Ethics for Tourism

The next inquiry in resolving the question of whether the Global Code of Ethics for Tourism qualifies as soft law is whether there is a legal obligation for all stakeholders to implement the provisions of the Code. When an instrument of law is formulated in order to change legal rules in the future, it implies the intention of the lawmaker that the provisions contained in the legal instruments can be implemented. One of the important issues in the creation of any legal instrument is to identify the entities that have the legal obligation to implement the law. As far as the question of how international law works within the legal order of a state is concerned, different approaches exist. One approach, referred to as the “voluntarist” view, teaches that international law only becomes binding upon a state as a result of the state’s willingness intention to be bound. The other view, referred to as the “objectivist” approach, holds that international law is binding objectively, and therefore not in connection to the state’s willingness to be bound. 97 The voluntarist approach has led to the so-called dualism theory, which sees international law and national law as two separate legal systems , entailing that international law only becomes binding in a state if national transposition measures have taken place. 98 In a monistic system, to the contrary, international law automatically becomes part of internal law. 99 This has important consequences for the question whether individuals within a state can—provided international law has precise and clear so-called self-executing obligations upon the state—directly call on the provisions contained in a treaty. In a monistic system, this would be the case even if the state has failed to take measures in national law to implement the treaty obligations. In a dualistic system, this would not be possible because the state would first have to enact national transposition legislation, which the citizen can subsequently invoke. As mentioned above, in implementing the Global Code of Ethics for Tourism, the UNWTO General Assembly recommends that its members expressly accept the principles laid down in the Code, without being obliged to do so, and use these principles as a basis when establishing their domestic laws and regulations. 100 Members of the UNWTO are merely “invited” to actively implement the recommendations expressed by the UNWTO during previous sessions in the fields 97. Dinah Shelton, Normative Hierarchy in International Law, 100 A M . J. I NT ’ L . L. 291, 323 2006. 98. See, e.g., M ANFRED L ACHS , T HE T EACHER IN I NTERNATIONAL L AW : T EACHINGS AND T EACHING 83 2nd rev. ed. 1987. See also C.J.S Azoro, The Place of Customary International Law in the Nigerian Legal System - A Jurisprudential Perspective, 13 I NT ’ L J. R ES . 74, 80 Apr. 2014. 99. See E DWIN E GEDE P ETER S UTCH , T HE P OLITICS OF I NTERNATIONAL L AW AND I NTERNATIONAL J USTICE 24 2013. 100. Global Code of Ethics for Tourism, supra note 3, at 12, ¶ 4a. 13 SANTA CLARA JOURNAL OF INTERNATIONAL LAW 375 2015 394 covered by the Code. The annex to the Global Code of Ethics for Tourism contains a Draft Protocol of Implementation, which creates a World Committee on Tourism Ethics. 101 This is the body responsible for interpreting, applying, and evaluating the provisions of the Code. 102 Its functions will be further discussed below. The reports of the UNWTO to the UN Secretary General provide further information on the implementation of the Global Code of Ethics for Tourism. Interestingly, the differing approaches to international law—dualistic and monistic—can also be recognized when examining how stakeholders, particularly state actors, have implemented the Code. In this regard, it is useful to refer to the survey on the implementation of the Code, conducted by the UNWTO secretariat among its member states, associate members, as well as permanent and special observers. 103 The results of the survey can be described as follows: [1.] [Forty-nine] responding States have indicated that they had incorporated the principles of the Code into their legislative texts, while 48 countries had used the same principles as a basis for establishing national laws and regulations or for designing policies and master plans for assuring the sustainable and responsible development of tourism. [2.] . . . [T]he Code of Ethics has been given effect by a number of countries through their respective institutional bodies for example, in Honduras by the National Congress or governmental bodies for example, in Spain by the Council of Ministers, and in other countries by tourism ministriesnational administrations or related bodies. A few countries and territories, including Argentina, Costa Rica, the United Republic of Tanzania, Uruguay and the Flemish Community of Belgium have adopted parliamentaryministerial resolutions in line with the Code’s principles. [3.] The majority of countries have also included relevant provisions of the Code in contractual instruments, specific codes of conduct or professional rules. Several countries have embarked on the preparation of national or sectoral codes of ethics for tourism. 104 101. Id. at 14-15. 102. Id. 103. Implementation of the Global Code of Ethics for Tourism, supra note 2, at 4. The report explains that “since the adoption of the Global Code of Ethics for Tourism in 1999 the secretariat of the UNWTO has conducted 3 surveys among its members in 2000, 2004 and 20082009 in order to monitor the implementation of the Code.” Id. Some 114 UNWTO member states and 70 of the territories have responded to at least one of the surveys. Id. 104. Id. at 4-5. For an interesting comparison of various voluntary policy instruments for sustainable tourism, see Silvia Ayuso, Comparing Voluntary Policy Instruments for Sustainable Tourism: the Experience of the Spanish Hotel Sector, 152 J. S USTAIN . T OURISM 144, 159 2007. The Global Code of Ethics for Tourism and the World Committee on Tourism Ethics 395 The existence of the Global Code of Ethics for Tourism is also recognized by a number of regional organizations and referred to in documents they draft. For example, the 2002 ASEAN Tourism Agreement confirms compliance with the Code and is specifically committed to taking bold steps to prevent tourism activities that could potentially exploit human beings, especially women and children, as mentioned in the Global Code of Ethics for Tourism. 105 We can also point at the enthusiasm of tourism businesses in respecting the Code. For example, several tourism enterprises have signed the Private Sector Commitment to the Global Code of Ethics for Tourism. 106 Therefore, it becomes important that public and private stakeholders in tourism development are encouraged to cooperate in the implementation of these principles and monitor their effective application. 107 In this regard, we can take note that the UN General Assembly “encourages the [UNWTO], through its World Committee on Tourism Ethics and the permanent secretariat of the Committee, to monitor the implementation of the ethical principles related to tourism by both the public and the private sectors.” 108

E. Legally Binding Force: Summary