Tourism, culture, law & development: the need for a coherent regulatory framework in Nigeria
Law has a very important role to play in the tourism strategy of countries in Africa. The potential role that law can play in tourism development in Africa should be fully and urgently explored drawing on the experiences of other countries. A sound, coherent, and up-to-date regulatory framework can facilitate tourism rather than impede it. A coherent legal framework coupled with sound institutional capacity-building strategies will go a long way in ensuring that cultures and the rights of ethnic and religious groups are not sacrificed on the altar of tourism. Such a framework will ensure that the benefits associated with tourism are maximized while the costs are minimized.
A coherent legal framework is one that is grounded in domestic norms as well as international norms and principles. Regarding international norms, such a framework must take into account and reconcile Nigeria’s obligations under different international law regimes including international human rights regime, the international trade and investment regime, the international intellectual property law regime as well as the international environmental law regime. The starting point is a complete law and tourism inventory.
A coherent legal framework is also one that addresses the different and multiple areas that governments can influence the sustainability of tourism. In Making Tourism More Sustainable – A Guide for Policy Makers (UNEP/UNWTO, 2005), the United Nations Environmental Program and the United Nations World Tourism Organization identified at least – areas that government can and do influence the sustainability of tourism: (1) Finance (e.g. taxes); (2) Environmental and natural resources; (3) Transport; (4) Culture; (5) Agriculture; (6) Education; (7) Health; (8) Sports and Recreation; (9) Internal Affairs; and (10) Foreign Affairs. Tourism law is thus that body of law (federal, state, local, common law, and international law) that regulate the travel industry. There are two aspects to tourism law. First are general laws (e.g. health law) that also apply to the tourism industry. Second are laws, regulations and ordinances that are specific to the tourism industry. Not every country has a body of law specific to the travel industry. However, to be competitive, a country’s law must address the different issues that arise in the travel and tourism sector including: contract law issues, crimes, employment issues, tourism and hospitality procedures, anti-trust rules, regulatory and agency compliance, issues relating to loss or damage to property, rights of tourists. China adopted the country’s first tourism law in April 2013. The law reportedly addresses address key problems that have plagued the industry such as unfair competition, wanton price hikes, and forced goods purchases. The law also has provisions on the rights of tourists.
A Law and Tourism Inventory
Law is not only important but indispensable in tourism development. Nigeria’s performance on the Travel and Tourism Competitiveness Index 2013 (TTCI 2013) points to the need for policy makers to pay attention to the regulatory framework for tourism in the country.Nigeria scored 127/140 on the TTCI 2013. However, on the Regulatory Framework Sub-index of the TTCI, Nigeria scored a very poor 135/140. Regarding the Policy Rules and Regulation pillar of the Sub-index, Nigeria scored 111/140. The pillar looks at issues such as: time to start business, cost of starting a business, transparency of government policy making, and property rights.
Urgently needed in Nigeria is a complete inventory of the laws relating to tourism in Nigeria? What laws already exist? Based on international best practices, where are the gaps in Nigeria’s legal framework for tourism? A complete law and tourism inventory requires that honest answers to sought to a broad range of questions. For example:
1. Is there a clear legal framework for tourism in Nigeria?
2. Is Nigerian law on tourism comprehensive, complete and up-to-date?
3. Is law being used effectively to maximize the benefits of sustainable tourism and minimize the costs? The UNWTO and UNEP have identified 12 potential aims for an agenda for sustainable tourism: (1) environmental purity; (2) resource efficiency; (3) biological diversity; (4) physical integrity; (5) community well-being; (6) social equity; (7) economic viability; (8) local prosperity; (9) visitor fulfillment; (10) employment quality; (11) local control; and (12) cultural richness. How are laws currently used to foster the stated aims?
4. Was existing law on tourism passed with full involvement and participation of key stakeholders?
5. Is Nigeria’s law on tourism based on international best practices?
6. Does Nigeria’s law on tourism implement the country’s various obligations under international law?
7. Is Nigeria’s law on tourism consciously designed to facilitate sustainable tourism? Are the principles of sustainable tourism clearly set out in existing laws?
8. Does Nigeria’s law on tourism specifically implement pro-poor strategies along the lines recommended by the UNWTO
9. Do existing laws strike a necessary and right balance between the goals of liberalization and those of protecting vulnerable groups and sub-sectors in the tourism industry?
10. Do existing policy and regulatory framework reflect the needs and aspirations of local communities and indigenous groups in the country?
11. Are stakeholders and civil society groups aware of the Nigerians aware of existing codes of conduct pertinent to the industry such as the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism? Does existing laws draw attention to codes of conduct such as the 1999 Global Code of Ethics for Tourism(GCET) adopted by the General Assembly of the World Tourism Organization
Towards a Coherent Regulatory Framework
To maximize the benefit associated with tourism and minimize the costs, coherence in law and policy is required. It is imperative that in any future tourism policy reflect the needs and aspirations of communities in Nigeria but also implement obligations that Nigeria has assumed under international law. Coherence is particularly required in respect to five areas of international law: human rights law, environmental law, international trade law, international investment law, and intellectual property laws.
A. International Intellectual Property Law
The questions to ask are: What are the intellectual property (IP) needs and expectations of traditional knowledge holders in Nigeria?Is the conventional intellectual property law system adequate to protect the genetic resource, traditional knowledge and cultural expressions of indigenous people in the country? What regimes of protection exist outside of the intellectual property regime?What about regional norms? In 2010, countries in Africa adopted the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (the Protocol) within the Framework of the African Regional Intellectual Property Organization (ARIPO). The adoption of the Swakopmund Protocol was seen as a landmark event in Africa. The Director General of the World Intellectual Property Organization, Francis Gurry, called the adoption of the Protocol “a significant milestone in the evolution of intellectual property.” Nigeria is not a member of ARIPO and has not ratified the Swakopmund Protocol. Although any state that is a member of the African Union or the United Nations Economic Commission for Africa can ratify Protocol, most have not. The limited response of African States to the Swakopmund Protocol raises a lot of questions and deserves closer analysis.
B. International Human Rights Law
Although there are many benefits associated with tourism, Patricia Barnett, director of Tourism Concern, is right in her conclusion that “these benefits are fundamentally undermined by the human rights violations that so often accompany tourism development, and in which both governments and industry stakeholders are very often complicit.” Ms. Barnet goes on to note that “These violations include land grabs and forced displacement, loss of livelihoods, compromised access to water and other essential natural resources, environmental degradation, poor working conditions, exclusion from decision-making processes, cultural erosion, and the sexual exploitation of women and children.”
Integrating human rights into a country’s tourism law requires awareness in the country of core human rights instruments including: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration on the Rights of Indigenous People, the Convention on the Rights of the Child, the African Charter on Human and People’s Rights and a host of treaties and declarations adopted under the auspices of the International Labor Organization. Some of the questions to ask are:
• Are human rights norms and principles fully integrated into Nigeria’s tourism development strategy?
• Can human rights norms and principles be integrated into tourism development and management in Nigeria?
• What would it mean for the tourism industry in Nigeria to take a human rights approach?
• Are the human rights issues related to tourism fully understood in Nigeria? Do all stakeholders understand the implications of tourism for indigenous rights, water rights, land rights, women’s rights, the right of children, and labor rights?
• Is human rights and regional/international human rights norms integrated into existing initiatives?
• Are the most socially and economically marginalized communities and groups in Nigeria excluded from tourism’s benefits? Why?
In September 2007, the UN General Assemblyby a majority of 144 states in favor adopted the Declaration on the Rights of Indigenous Peoples (Declaration). Four (4) countries voted against the Declaration (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). The concern is not that Nigeria abstained from the vote on the Declaration but that the decision was taken without much internal debate in the country.
C. International Trade Law
As a member of the World Trade Organization, Nigeria is bound by the commitments it has made under various WTO agreements. Of particular relevance is the Trade-Related Aspects of Intellectual Property Law (TRIPS Agreement) and the General Agreement on Trade in Services (GATS). Regarding the TRIPS Agreement, several questions can be asked. Does the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) afford the government necessary flexibility and policy space to effectively protect traditional knowledge? Is Nigeria using the flexibilities and exceptions in the TRIPS Agreements to adequately protect traditional knowledge in the country?
GATS is also very important. Whether small and medium-sized enterprises (SMEs) in Nigeria benefit from any improvement in the tourism sector will depend on the Commitments that Nigeria has made in the WTO.Did Nigeria liberalize the tourism industry? Did Nigeria undertake to liberalize all sectors of the industry and all modes of services? Can SMEs in Nigeria compete in the industry?Patricia Barnett, director of Tourism Concern, is right in her conclusion that “Like most globalised industries, tourism is fiercely competitive. Significant power rests with a small number of large, international tour operators and hotel chains, which are steadily buying up their rivals and pricing out local competitors in a race to the bottom.” The United Nations Conference on Trade and Development (UNCTAD) notes that, “In their relations with tour operators, many suppliers of tourism services in developing countries … are hampered by their weak bargaining position and lack of negotiating skill, which often result in unfavourable contractual conditions.” Several questions must be asked including:
• What are the implications of WTO rules and the GATS for the tourism sector in Nigeria?
• Did Nigeria undertake to liberalize the tourism sector and to what degree?
• How might Nigeria’s liberalization commitment, undermine efforts to use tourism as a tool to encourage the development of SMEs in the tourism sector?
• What is being done to improve the competitiveness of Nigerian SMEs operating in the tourism sector?
D. International Environmental Law
Hard international environmental law such as the Convention on Biological Diversity, the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, as well as soft international environmental law (e.g. Quebec Declaration on Ecotourism) must be fully integrated into tourism policy and planning in Nigeria. Many countries are in the process of implementing relevant treaties based on international best practices. Several questions must be asked including:
• Has Nigeria implemented hard and soft international environmental law in its tourism regulatory framework?
• Are environmental considerations fully integrated in Nigeria’s tourism development policies and strategies?
• In the development of the tourism industry, is Nigeria guided by existing international treaties, principles and guidelines such as the OECD Guidelines concerning the International and Economic Aspects of Environmental Policies in Tourist Areas?
• Are environmental considerations duly incorporated in any definition of the rights and duties of tourists and tourist operators in Nigeria?
• Is Nigeria taking appropriate steps to ensure that competent public authorities as well as tourist organizations and enterprises take due account of environmental considerations?
E. International Investment Law
International investment law is embodied primarily in bilateral investment treaties (BITs) and in investment chapters of other international investment agreements. BITs typically oblige countries to grant certain rights (e.g. national treatment and most-favored nation) to foreign investors. Some BITs also contain provisions restricting the use of performance requirements. Will commitments that Nigeria made under various BITs treaties oblige the country to liberalize all types of services in the tourism industry to the detriment of SMEs in the country?Do the BITs restrict the power of government to regulate in the public interest?
Tourism Law in Nigeria: The Role of Lawyers and Professional Associations
Tourism law is a growing, diverse and complex field of law. For law to play an effective role in tourism development in Nigeria, organizations like the Nigerian Bar Association (NBA) have an important role to play. At a minimum, the NBA can: (a) create awareness of tourism law in Nigeria; (b) review Nigerian tourism law based on international best practices; (c) conduct research with a view to identifying international best practices in the law and regulation of tourism; (d) identify and developing new, creative and sustainable solutions to new problems cropping up in the industry, particularly problems that are unique to developing countries or countries in Africa; and (e) equip domestic suppliers of services with the tools they need to negotiate fair deals with tour operators.
Conclusion
The task of putting in place a legal framework that meets international best practices but which also respects the distinctive characteristics of the Nigerian society, protects Nigeria’s cultural property, and is sustainable from the point of view of ethnic and indigenous communities in Nigeria must start today. The tourism sector is a growing and dynamic sector and an important part of the economy of many countries.Increasingly, governments are using tourism as a strategy for biodiversity conservation, poverty reduction, climate change mitigation and adaptation, women’s empowerment, and cultural survival. However, tourism comes at a cost.Pi-SunyerOriol,Professor of Anthropology and Director of the Latin American Studies at the University of Massachusetts at Amherst, takes the view that tourism “does share with many other developmental strategies a potential for cultural dislocation.”
Tourism for Whom?This is a question that must be continually and repeatedly asked.Can tourism yield win-win outcomes for all stakeholders? ProfessorPi-SunyerOriol is doubtful. According tohim:
A reasonable answer is that in economic terms the benefits to host countries and societies correlate closely to the degree of control they have over the [tourism] industry. This control is very much a function of the economic strength and political autonomy of the society. Thus, while there is tourism in Senegal and in Switzerland, the Swiss benefit a great deal more from every tourist that visits their country: not only are tourists in Switzerland likely to leave more money in local pockets, staying at Swiss-owned hotels and buying Swiss watches, but much of the infrastructure (tour operators, transportation, etc.) will be Swiss.
Going Forward
The travel and tourism sector is growing and can contribute positively to economic development, poverty alleviation, cultural security and environmental conservation. Future industry projections point to a sector that will remain very robust in the future. The World Travel and Tourism Council projects an annual growth of about 4.4% per year over the next ten years to 2022. The tourism sector is very competitive. Across the globe, countries, particularly emerging economies, are coming up with innovative ways to exploit their cultural property to political and economic advantage. It is reported that Egypt is seriously considering renting out its pyramids to Qatar. Nigeria’s tourism sector can be repositioned to compete with those of emerging markets some of which are seeing double-digit growths. Emerging economy destinations that saw high receipts growth in their tourism sector in 2012 included Thailand (+25%), India (+22%), Poland (+13%), South Africa (+18%), Egypt (+14%), Vietnam (+18%) and Ukraine (+13%). To compete effectively, the present obstacles to competitiveness must be addressed. Most important, law must be seen as a vital and indispensable tool in tourism development and used effectively. The necessary legal, regulatory, and institutional framework must be in place, technical assistance must be available to domestic suppliers of services to the tourism industry, and other factors that compromise Nigeria’s competitiveness in the industry must be addressed.
With respect to protection of cultural property, traditional knowledge, and the rights of indigenous groups generally, maximum effort must be made to safeguard Nigeria’s rich cultural, natural, and historical heritage. Most countries adopt a multiplicity of approaches using modern intellectual property law as well as other laws and mechanisms outside the intellectual property law regime. Nigeria can learn valuable lessons from the experiences and even the mistakes of other countries. A comparative study of best practices in this area is called for. What is working? What is not working?
Dr. Uche Ewelukwa Ofodile
LL.B. (Nigeria), LL.M. (London), LL.M. (Harvard), S.J.D. (Harvard)
Professor, University of Arkansas School of Law