Conceptualising tourism and the tourist as a legal problem
Chapter 1
Conceptualising tourism and the tourist as a legal problem
The exotic holidays, which were becoming increasingly attractive to British tourists, may seem less so in a rather more dangerous world. This represents a real opportunity for the British tourism industry to sell its benefits to the British people. The more exotic holidays may also be less tempting to some of the foreign tourist markets, and we may also attract them. Most importantly, the British tourist industry and the relevant agencies should use this year to attract British tourists back to holidaying in Britain.
(Lord McNally, House of Lords, Hansard, 30 April 2003)
Tourism can bring pollution, traffic congestion, overcrowding, and sometimes downright environmental damage. The income generated by tourists all too often does not stay in the local area but is siphoned off to other areas, so local people are not benefited.
(Lord Patten, House of Lords, Hansard, 30 April 2003)
Tourism as a social phenomenon and as an area of state policy is rife with contradictions and confusion. Urry writes that the consumption of leisure activities ‘cannot be separated from the social relations in which they are embedded’.1 It should be no surprise then to discover that the laws and policies which seek to regulate tourism reflect the numerous tensions and other sources of social conflict present in society. While the more popular view of law in relation to tourism is to see it as a facilitator of both tourism and the business of tourism, our project is to present it as part of the ‘problem of tourism’. By this we mean the manner in which tourism reflects power differentials in society and thus becomes a constantly shifting phenomenon which at different times takes on different and often opposed objectives. In this process the law does not become a mechanism for clarifying tourism, but instead becomes a force for disguising, concealing and thwarting the aims of different interests in relation to tourism.
The title of this book also speaks to the ‘age of uncertainty’ in which we find ourselves. While for many this had an apparent beginning with the events in New York City in 2001 (what has come to be known simply as ‘9/11’), it is clear that that day was more of a continuation of a process that had already begun in modern society. The age of uncertainty in travel and tourism did not begin in September 2001; it was merely underlined on that day, regardless of the fact that some airline security measures may be traced from the events on that day. Chris Rojek had already outlined in 1993 how tourism had been transformed in ways that reflected growing unease and anxiety in modern times. As he wrote then, ‘de-differentiation has weakened the contrast between home and abroad’.2 Mass tourism has come to ensure that travel is underpinned by a ‘sameness’ wherever one goes, thus creating a certain amount of confusion about where one is actually ‘located’ at any point in time.3 Yet Rojek also appears to acknowledge that there are risks in travelling, perhaps through the ‘on streets’ encounters of a greater diversity of individuals now present in many urban destinations. In an age of concern with the risks associated with modern life he observed that ‘television gives us a window on the world without incurring the risks and inconveniences that beset the traveller and the tourist’.4
For Rojek modern life is characterised by an ‘artificiality’ which ‘creates constant anxieties about the nature of our real feelings’.5 It is the shallowness of modern life created by modern consumerism and the dominance of the ‘corporate agenda’ that lies beneath this anxiety. Rojek argues that ‘consumer culture encourages a positive, feel-good, keep fit, acquisitive attitude which marginalizes the traditional question of what life is for’.6 One can already see the implications for tourism and fundamental questions about its consistency with equity and non-exploitative practices. As Rojek says, leisure and travel are ways of escape and their popularity reside in that they ‘enable us to experience the rapid, hectic controls of Modernity in concentrated form’.7 We live in an age where life is ‘fast’ yet routinised, where we are constantly ‘busy’ yet have no time for all we want to do, where the ten-second newsgrab has given way to the limited characters allocated on Twitter for what you are currently ‘doing’. As Rojek wrote 16 years ago, long before Facebook, Twitter and Smartphones:
… popular leisure activity seems to thrive on fragmentary, contrasting and fleeting experience. Far from demonstrating a reaction to the routines of life as some commentators allege, leisure often involves the intensification and extension of those routines … Leisure, one might say, is not the antithesis of daily life but the continuation of it in dramatized or spectacular form.8
Rojek’s analysis may explain the manner in which many tourist attractions now seem to centre on the ‘mundane’. How working-class estates can become tourist destinations and how ‘shopping trips’, for example, are recast as urban experiences and leisure activities. In fact, these are prime examples of how leisure and tourism is able to repackage any experience for consumption while also creating uncertainty about our lives. If work becomes leisure then where is the divide between our working life and our personal life? In the same way, if a tourist overstays and takes on menial work on low wages in pursuit of a dream of a new life, then is that a logical extension of the travel experience or the corruption of the purpose of tourism?9 In a nutshell, where we have come to is the question of what is the purpose of tourism and the law’s role in regulating it?
Law and the shifting objectives of tourism
From economic gain to sustainability
In 2003 the Australian Government issued a white paper on tourism policy.10 This White Paper clearly adopts a business model of tourism which focuses on the need to repackage Australia in order to reap the economic benefits of (hopefully) increased tourism in the future. This culminates in the notion of ‘Brand Australia’ which is explained as a concept which extends beyond tourism to embrace a combination of Australia’s ‘spectacular natural environment, the distinctive personality of the Australian people and the free spirited nature of the country’s lifestyle and culture’.11 This in turn leads to Australia being described as a ‘Platinum Plus’ destination, one which will be able to increase its global market share of tourism through exceeding ‘customer expectations in terms of the quality and value it provides; it is the concept of providing an exceptional experience with superior standards, from the moment visitors get on the plane to the time they return home’.12
The significance of this portrayal of Australia as a ‘brand’ is that it suggests the complete abdication of the reality and complexity of the nation state to the marketer’s hype. As a consequence, those factors which inhibit tourism growth are presented as something apart from and not of the country which is being marketed. Thus the white paper notes that ‘[w]idespread security and safety fears have changed the environment for travel and tourism and threaten the predicted growth of tourism both globally and locally’.13 Yet while on one level tourism is said to be endangered by the threat of terrorism, it is also applauded as a practice which ‘provides the opportunity for cultural exchange and fosters understanding’.14 Tourism may thus also be described as a force which might inhibit the conditions from which terrorism grows.
Clearly, the construction of tourism as being primarily about economic gain distorts the reality of tourism and its more complex connections with society. In this context ‘sustainable tourism’ becomes not a contradiction in terms, but a clever way of doing business. As the white paper puts it: ‘Sustainable tourism is the development of an internationally competitive, ecologically sustainable and socially responsible tourism industry based on an integration of economic, social and environmental objectives and constraints.’15
Similar ways of thinking about tourism have also evolved in the United Kingdom. In 1999 the Department of Culture, Media and Sport outlined its strategy for tourism into the new millennium. After identifying the immediate benefits of tourism as ‘the opportunity for rest, relaxation, adventure and enjoyment’16 it states that tourism is much more than this as it ‘generates wealth’, ‘creates jobs’, ‘promotes entrepreneurship’, and ‘provides social and environmental benefits, and supports local diversity and cultural traditions’.17 This emphasis on the economic benefits of tourism leads to the need to grow the industry, albeit in a sustainable manner. This is never seen as a contradiction or having any real tensions. Thus this paper proposed that local planning authorities understand the
needs of the tourism sector and do what they can to ensure that planning procedures do not constitute an unnecessary obstacle to tourism development. It is equally important that tourism developers appreciate the issues which planners have to face, and that they understand the system and are able to negotiate the complex procedures involved.18
It also proposed a more co-ordinated national approach to tourism with one body to advocate for tourism including the need to act ‘as a voice for successful sustainable tourism in England’.19 This translates – in the same vein as the Australian white paper – to a ‘“wise” growth strategy’, that is, ‘one which integrates the economic, social and environmental implications of tourism and which spreads the benefits throughout society as widely as possible’.20 The difference between this and the later Australian document is that here the strategy is to integrate the economic, social and environmental implications of tourism, rather than the objectives and constraints. The question is whether much turns on the use of language here. It is our contention that much of this is designed to obfuscate rather than clarify how tourism is to be constructed, and that the manner in which documents slide from ‘objectives and constraints’ to ‘implications’ are examples of this.
The problem is that the ‘integration of economic, social and environmental objectives and constraints’ may suggest quite different objectives to different people. As with the notion of a ‘Brand Australia’, the notion that tourism can ‘integrate’ objectives or implications depends on an acceptance that ultimately social cohesion can be achieved. But as Urry suggests in relation to the notion of national icons, such icons are often vigorously contested, such as in his example of Australian bicentennial celebrations being viewed by indigenous people as the celebration of an invasion.21 Urry writes of the ‘end of tourism’ focussing instead on the diverse manner in which we all travel. As he puts it, instead of tourism, ‘rather there are countless mobilities, physical, imaginative and virtual, voluntary and coerced.’22
Taking Urry as a starting point, it seems to us that the important question then is how those laws which purport to regulate, facilitate and control ‘tourism’ fit with the notion that what we are actually addressing are diverse mobilities. As we shall see, viewed in this way, the ‘problem of tourism’ is perhaps better viewed as the ‘problem with mobility’ and its effects. The value of this approach can be demonstrated by considering the manner in which tourism generates not only the consumers of travel and its by-products, but also how it creates a movement of people towards areas where tourism provides employment. Such movements may be voluntary but also may be coerced (such as in the example of the trafficked sex worker). It may also spawn a host of other movements which surround what many may see as the ‘core business’ of tourism, such as the mobilisation of resources to underpin travel including physical resources and virtual spaces. It follows from this that what we should consider to be relevant in discussions of law and tourism should not be constrained by narrow notions of what constitutes tourism. We must ensure that our discussion connects law with the social forces and relations that are reflected in what we understand as tourism, social forces and relations that are constantly realigning and reshaping themselves.
This approach also assists in understanding the relationship between the notion of ‘sustainable tourism’ and law. As Farrell and Twining-Ward argue, the very term ‘sustainable tourism’ suggests that it is an achievable and determinable form of tourism.23 Their thesis is based on the view that both nature and human activity must be viewed as parts of ‘integrated, complex adaptive systems’ or socio-ecological systems.24 These systems structure behaviour but not always in a predictable way. As they describe the process, ‘[i]t is the forces generated within systems that produce continual uncertainty and unpredictability and confound those attempting management through rigid control’.25 For them the notion that the economy, personal health, politics and tourism, for example, are normally in balance with occasional disturbances which if addressed return one to normality is a ‘falsely optimistic principle [that] has long governed the scientific study of nature as well as most of the social sciences, including economics and tourism’.26
This approach is summed up in their description of how events occur in this context:
Events usually triggered by multiple causes have uncertain consequences, and because complex systems operate over a variety of temporal and spatial scales, little is likely to result simultaneously at the time expected or on the scale imagined. This is pivotal to any thoughts of achieving sustainability. Policy decisions may take from weeks to years for all goals to reach fruition. Those concerning human control of resources (like social policy) may cause cascades of surprising outcomes, some of which when they finally arrive may be quite out of proportion to the magnitude of the original inputs. Others, which take a long time to reveal themselves, may be recognised too late for us to do anything about them.27
Thus, the idea of sustainability has to be viewed as an ever-moving concept rather than one that is ultimately achievable. It has to adapt to time and place, not just in terms of the setting of the natural environment but also with respect to human culture and expectations. As Farrell and Twining-Ward put it, ‘[s]ustainable development then, must be viewed as an evolving complex system that co-adapts to the specifics of the particular place, and especially to the aspirations and values of local people’.28
This view of sustainable tourism seems to converge with those who argue that tourism can be made more responsive to the needs of people. Higgins-Desbiolles thus argues that the discourse of tourism which posits it as an ‘industry’ has come to dominate almost all discussions of tourism as a phenomenon.29 She argues that tourism can also be regarded as ‘a social force, which if freed from the fetters of “market ideology” can achieve vital aims for all of humanity’.30
Her argument centres around the dominance of the market in the current world economic order and the manner in which neo-liberalism has defined the prime purpose of government as promoting economic growth.31 She then develops the connection of tourism with market ideology: ‘The tourism sector is very important in these processes because the consumption of tourism experiences is a key “growth” sector in many contemporary economies. As a result, tourism has been radically changed by the hegemony of the market.’32 The purpose of promoting tourism as part of the free-market economy is that it frees the commercial interests which profit from tourism to exploit countries and cultures. Higgins-Desbiolles cites authors such as Wearing who argue that:
Tourism perpetuates inequality, with the multinational companies of the advanced capitalist countries retaining the economic power and resources to invest in and ultimately control nations of the developing world. In many cases, a developing country’s engagement with tourism serves simply to confirm its dependent, subordinate position in relation to the advanced capitalist societies – itself a form of neo-colonialism.33
Her point then is that the ‘mantra’ that tourism is an industry that is only subject to the rule of the marketplace34 serves the purposes of those interests that profit from it.35 She argues that while this ‘tourism as industry’ discourse is here to stay, there are alternative discourses which do not focus on the economic objectives of the ‘tourist industry’. These alternative discourses focus on the ‘transformative capacity of tourism’,36 or as she defines them, the ‘positive impacts’.37 These include ‘improving individual well-being, fostering cross-cultural understanding, facilitating learning, contributing to cultural protection, supplementing development, fostering environmental protection, promoting peace and fomenting global consciousness.’38 She quotes McKean who says tourism can be viewed as a ‘desire to know “others”,with the reciprocal possibility that we may come to know ourselves’.39 Higgins-Desbiolles then refers to the Manila Declaration on World Tourism as an example of a statement of the positive aspects of tourism.
The Manila Declaration was made in 1980 following a conference convened by the World Tourism Organization. That document proclaimed that:
world tourism can develop in a climate of peace and security which can be achieved through the joint efforts of all States in promoting the reduction of international tension and in developing international cooperation in a spirit of friendship, respect for human rights, and understanding among all States.40
The Declaration also invokes tourism’s ability to ‘contribute to a new international economic order’ that would ‘help to eliminate the widening gap between developed and developing countries’.41 Article 21 also reinforces the importance of the spiritual factors in tourism:
In the practice of tourism, spiritual elements must take precedence over technical and material elements. The spiritual elements are essentially as follows:
(a) the total fulfilment of the human being,
(b) a constantly increasing contribution to education,
(c) equality of destiny of nations,
(d) the liberation of man in a spirit of respect for his identity and dignity,
(e) the affirmation of the originality of cultures and respect for the moral heritage of peoples.42
It also stresses the notion of tourism as a human right in article 4:
The right to leisure, and in particular the right to access to holidays and to freedom of travel and tourism, a natural consequence of the right to work, is recognized as an aspect of the fulfilment of the human being by the Universal Declaration of Human Rights as well as by the legislation of many States. It entails for society the duty of providing for its citizens the best practical, effective and non-discriminatory access to this type of activity. Such an effort must be in harmony with the priorities, institutions and traditions of each individual country.43
While the approach of Higgins-Desbiolles has much to recommend it with respect to the manner in which it suggests that tourism is much more multidimensional than an ‘industry’ with the creation of profit as its raison d’être, we would take issue that it can be simply presented as competing discourses between market ideology on one side and tourism as a positive social force on the other. In our view, to do so is to ignore that the legal discourse which is reflected in the declarations issued by the World Tourism Organization and often repeated at national level in legislation and codes of conduct is produced by the same international and state apparatus which generates the discourse of the market and tourism as an industry.
That is to say that such declarations often contain within themselves the very problems that they are designed to address. For example, articles 13 and 24 of the Universal Declaration of Human Rights is said to underpin the broader aims of tourism proclaimed in the Manila Declaration above. Article 13 states:
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 24 provides that ‘(e)veryone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay’.
We do not wish to engage with the trite criticism that the Universal Declaration is too general and vague to convey any meaningful rights. In our view the document is an important statement of principle with respect to the human rights it asserts. However, this does not make it immune from examination with respect to the actual content it might import into human rights. This approach also seems especially useful when we are discussing the various discourses that exist within tourism as opposed to narrow technical legal content. Thus article 13, while on the face of it appears to convey a broad right to travel, does not contain within it the problem of how one is to exercise one’s right to leave a country if there is no corresponding right to enter other countries. Clearly, nations impose restrictions on who may cross their borders, which suggests the right to leave a country carries with it no guarantee of a welcome in another land.
While the history of article 13 may have something to do with a time when the restriction of movement by totalitarian regimes meant that leaving a country was more problematic than entering a country, in the current world there seems to be a greater emphasis on keeping out others than being concerned with enabling people to leave countries. The point is, of course, that article 13 in its own terms does not prevent that emphasis. Thus the whole notion that tourism is underpinned by the right to travel, and as a consequence to leave and enter countries, is much more problematic than this right would suggest.
The role of law in this process is important as it will be legal criteria that will be drafted to define what is to be regarded as ‘acceptable movement’ and what is to be regarded as unlawful entry into a country. For example, the Acapulco Documents on the Rights to Holidays 1982 – another document which followed a World Tourism Organization meeting – refers to the importance of ‘tourism as a vehicle for peace, harmony and mutual respect among peoples and for knowledge of the world and its truth’44 and the ‘right of access to holidays of all layers of the population and the least favoured in particular’.45 It then asserts that such objectives cannot be achieved without a general framework of freedom of movement and travel.46 At this point what is being claimed is quite radical and challenging – that the most dispossessed in society in particular are to be given free movement and travel for the purposes of tourism. This is indeed a challenge to traditional notions of what constitutes tourism. But if this occurs because it employs the legal discourse surrounding human rights and freedoms, then it also carries with it the further qualifications embedded in legal discourse. The Acapulco Documents on the Rights to Holidays 1982 immediately qualifies the aim of freedom of movement and travel with the qualification:
any effort to foster freedom of movement and of travel must necessarily take into account the existing social and economic conditions of each country, its sovereignty, legislation and traditions as well as the rights and duties of its citizens.47
Thus the document concludes with respect to implementation of its aims that legislatures and other interest groups should seek to harmonise ‘the easing, wherever practicable, of travel formalities in respect of entry into and exit from the territory, customs, and currency and health regulations’.48 The qualification that this is to be done where practicable is the manner in which the use of legal discourse becomes problematic, for the right to free movement can always be constrained due to practicalities, such as concern with terrorism, the effect of tourist traffic on sites or other environmental effects. Indeed, the very documents which often speak to the social effects of tourism and seek to encourage it as a socially beneficial activity also acknowledge the negative impacts of tourism at the same time. In this sense, they provide both the justification for encouraging tourism and restricting it at the same time.
Article 24 of the Universal Declaration of Human Rights must also be qualified in its own terms. It purports to assert a human right to rest and leisure, logically contingent on a limitation of working hours and paid holidays. But this contingency is itself qualified by the term ‘reasonable’ which suggests that this right will be contested by different interest groups with respect to what is reasonable in this context. An example of how this plays out at a national level is contained within the workplace legislation brought in by a conservative federal government in Australia. Under the relevant law an employee is entitled to public holidays,49 but an employer may request an employee to work on a public holiday,50 and the employee may refuse to do so ‘if the employee has reasonable grounds for doing so’.51 Whether a refusal is regarded as reasonable is to be adjudged by reference to a range of considerations which include the nature of the work, the type of work performed, the nature of the workplace, the employee’s reason for refusing, the employee’s personal circumstances including family responsibilities, whether additional pay will be provided, notice of the work, and whether work on public holidays could have been expected.52