Specificities of Legal Regulation of International Tourism in Ukraine

Within past 50 years tourism has turned into a most powerful sector of global economy. This has required utmost unification of national legislation in this sphere as well as removal of obstacles (simplification of visa regulations and customs formalities) on the way of international tourism. For Ukraine with its inadequate utilization of tourist resources, it is rather topical to improve the legal basis and remove redundant border-crossing formalities.

International community has developed principles and standards on which tourism legislation should be based. These rules are set forth in multilateral or bilateral interstate agreements, resolutions of international organizations, first of all the World Tourism Organization (WTO) that now comprises 138 countries as members. Since 1999, Ukraine has been a member of the WTO Executive Council. WTO recommendations are implemented through relevant international declarations and arrangements.

The most important international legal instruments in the field of tourism are the General Resolution of the UN Conference on International Tourism and Travels (1963), the Manila Declaration on World Tourism (1980), the Tourism Charter (1985), and the Hague Declaration on Tourism (1989). They contain basic principles to be used both in national legislation and for concluding interstate agreements. On the basis of the above documents the Interparliamentary Conference on Tourism worked up a number of recommendations for the development of tourism that can be used as a guiding line in elaborating Ukrainian legislation in this field:

1. Tourism should be planned on a complex basis, taking into account all legal aspects that formally refer to other sectors (transport, communication, medical services). A general vector for legal amendments should be simplification of the system of regulation of both domestic and international tourism.
2. Tourism legislation should be based on the three objectives: protection of tourists, protection of an individual country in the case of tourism-related problems (environmental and others), and development of tourism.
3. A country that has just begun its activities in the field of tourism should coordinate such activities at the international level to avail itself of the international experience and avoid mistakes made by other countries.
4. Obstacles both for tourists and tourism industry in general should be eliminated.
5. To avoid any discrimination, a state should promote formation of tourism awareness (i.e. – hospitality) in respect of travelers and tourists on the part of customs, border and immigration officials, travel agency personnel and public at large.
6. A necessary requirement for development of tourism is ensuring safety of tourists. Legislation in the field of safety and protection of tourists should be clearly interrelated to other legislative measures towards eradication of violence and crime. There should be cooperation in this issue on the interstate and regional levels.

7. All measures should be taken to guarantee basic insurance of tourists against major risks they may encounter (a disease, theft of personal property, repatriation).
8. Legislation should envisage procedures promoting: a) prompt repatriation of tourists who have suffered encroachment upon themselves and/or their property to countries from which they have arrived; b) return of the stolen and recovered property to a country from which a tourist arrived.
9. Parliaments should consider all tourism-related legal regulations with a view of combining (at the same time filling the existing gaps) them into a comprehensive legislation that would codify national policies and priorities in the field of tourism. While doing so, special attention should be paid to compliance with international standards pertaining to this issue.

We shall now consider the Ukrainian applicable legislation [1] in the field of tourism in the light of the above recommendations. The Law on Tourism, enacted by the Resolution of the Supreme Rada of Ukraine of September 15, 1995. For the first time it legally specified the definitions of "tourism", "tourist", "tourist activities" [2], and others. It is stated that the legislation of Ukraine on tourism consists, in addition to this Law, of the Constitution of Ukraine, other acts of the legislation of Ukraine to be adopted in conformity with them, and international treaties and agreements to which Ukraine is a party. The Law further specifies that the central body of the national executive power in the field of tourism is the State Committee of Ukraine for Tourism, whose decisions, adopted within the scope of its authority, are mandatory for execution by all representatives of the executive power and economic entities regardless of the form of ownership. By regulating these and some other issues the Law inevitably played a positive role in the development of the Ukrainian tourist legislation. However, from the very beginning, it had a number of essential deficiencies.

Firstly, it does not reflect the provisions of Articles 137 and 138 of the Constitution of Ukraine, on the basis of which it can be affirmed that legal regulation of tourist activities pertains to joint jurisdiction of Ukraine and the Autonomous Republic of Crimea. It is especially important as namely Crimea has the largest number of foreign visitors (mainly from the Russian Federation), and potential non-coordination of policies in the field of tourism may have serious consequences. It is interesting that Russian tourists, when required to complete certain formalities (in particular, registration), express their resentment at the Ukrainian legislation, however the mostly interested party in this procedure is namely the Crimean authorities, since due to that they can withhold resort dues form visitors.

Secondly, the Law lacks concrete reference to the civil and other legislation that would aim at clearly defining the rights and duties of tourists, travel agencies as well as the procedure and nature of potential reimbursements both to Ukrainian nationals and aliens. The wording about the procedure of concluding agreements (contracts) between subjects of tourist activities is rather indistinct. European practice should serve as a model in this issue. The European Union adopted a special Directive (#90/314 of May 13, 1995) on a model contract between travel agencies and their customers. According to that document, all contracts should contain a distinct reference to national and international legal instruments on the basis of which they have been drawn. Ignoring the fact that Europe is already a single tourist space with unified regulations may seriously complicate the development of both in-country and out-of-a-country tourism. Regretfully, the Ukrainian authorities have rather one-sided understanding of the problem, proposing measures to ensure safety of tourists, primarily through bodyguard protection, failing to understand that it is, perhaps, the most important to ensure that tourists feel their rights protected, through establishing an appropriate legal framework.

Thirdly, the Law on Tourism specifies that the legal status of foreign tourists in the territory of Ukraine is regulated, first of all, by the Law of Ukraine On Legal Status of Aliens. However, that law has only most general provisions, which require further detailing, at least because of the fact that the overwhelming majority of tourists come from the CIS countries, i.e. the countries with which Ukraine has a non-visa regime (except Turkmenistan), and such tourists enter Ukraine through the semi-transparent eastern border. The revocation of the requirement for foreigners to be registered within three days (the Presidential Decree On Additional Measures As Regards Realization of the Human Right to Freedom of Movement and Free Choice of Residence of June 15, 2001) is only the first logical step in approaching to the European standards.

Fourthly, the legislators ignored specific domestic realities, namely that any kind of activities in Ukraine has a shadow component. In the field of tourism it is, first of all, tourist visas as a cover for illegal migration, illicit businesses (can the "suitcase tourism" be regarded as tourism under the definition of our law?) and even trafficking in people. Neither the Law, nor the regulations of the State Committee for Tourism envisage strict responsibility and effective control over activities of travel agencies, and due to that some of them engage in organization of illegal migration.

Therefore, the Law on Tourism should be supplemented significantly to eliminate the aforementioned deficiencies.

As we have mentioned above, international treaties and agreements to which Ukraine is a party constitute another component of the Ukrainian legislation in the field of tourism. First of all, it is the Treaty on Cooperation in the Field of Tourism, signed in the framework of CIS on December 23, 1993, as well as bilateral agreements with India (March 27, 1992), Georgia (April 13, 1993), Grand Duchy of Luxembourg (February 12, 1994), Turkey (May 30, 1994), Tunisia (April 7, 1995), Russian Federation (July 16, 1999), Armenia (December 11, 1999).

The Treaty between the CIS countries is generally based on the principles of the Manila Declaration on World Tourism and aims to develop equal and mutually beneficial cooperation in the field of tourism. An important point of both this Treaty and most of bilateral agreements is the commitment of the contracting parties to promote simplification of visa and customs formalities, as well as a pledge to timely inform about all newly adopted national legal acts pertaining to tourism. Bilateral agreements also envisage, as a rule, that the parties undertake to establish a most favored nation treatment to representatives of travel agencies.

International agreements, to which Ukraine is a party, essentially supplement Ukrainian national legislation; however, the list of countries with which Ukraine has relevant arrangements is somewhat surprising. Only the Russian Federation and Turkey could be named among countries with which there really exists appreciable tourist exchange. There is no arrangement with Poland, Bulgaria [3], Czech Republic, Cyprus. But the greatest deficiency is absence of an arrangement with EU, the latter in fact has completed the development of a unified system of tourist legislation. In our opinion, there are reciprocal interests in such arrangements, but the reasons of the sides are different. For EU it is important to settle this issue to prevent the use of tourist structures for, primarily, illegal labor migration (for instance, Spanish tourist visas were easier to get compared with some other embassies, and this used to be a channel of inflow of illegal manpower). For Ukraine, it is important to attract tourists from economically developed countries, which is impossible now in view of the legislative and international legal interstices.

The conclusions, therefore, are the following:

1. The Ukrainian legislation in the field of tourism requires essential supplementing and utmost adjusting with the international standards. In particular, the Law on Tourism should be adjusted with the existing international agreements and declarations and supplemented with clear references to standards of the civil, administrative and criminal law. It is critical to prevent using the tourist activities as a cover for illegal migration, sex-tourism, contraband-related businesses, and this should be reflected in the Ukrainian legislation.
2. Regretfully, despite the fact that both the Program of Tourism Development until 2005 (approved by the Cabinet of Ministers of Ukraine on June 28, 1997) and the Presidential Decree On Main Guidelines for Development of Tourism in Ukraine until 2010 [4] indicate that a priority type of tourism for Ukraine continues to be a foreign one (in-country tourism) as an important factor of hard currency earnings for the state budget and creation of additional jobs, nothing has in fact been done to simplify visa, customs and border-crossing formalities. It especially concerns the most promising trend of development of tourism, i.e. increasing the tourist flows from European countries that are now impeded not only by the low level of services in the Ukrainian tourist industry, but also by the existing numerous entry regulations and formalities.

[1] Some legislative acts and normative documents regulating tourist activities in Ukraine can be found at the website of the Ukrainian Travel Information System at http://www.utis.com.ua

[2] For instance, according to Article 1 of this Law, "tourism is a temporary departure of a person from the place of his or her permanent residence with recovery, educational or professional and business purposes, without his or her engagement in paid activities; tourist (traveler) is a person traveling in Ukraine or to other country with various purposes not forbidden by law of the country of stay, for the term from 24 hours to six months, without execution of any paid activities and with obligation to leave the country or the place of stay in a specified term; tourist activities are those to provide various tourist services pursuant to the requirements of this Law and other acts of the legislation of Ukraine."

[3] Bulgaria postponed introduction of the visa regime with Ukraine until October 2001 as it could have negatively affected its tourist industry at the Black Sea resorts of that country.

[4] On March 2, 2001, the President signed the Decree On Supporting the Development of Tourism in Ukraine, which reiterated demands to the relevant state bodies, that had already been included into the aforementioned Programs for tourism development.