Magazine 2017
- Journal 2017
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- Globalization and culture: Issues and Perspectives in India (15)
- Safe Cities and gender budgeting (22)
- Social Infrastructure: Current Scenario and Future Scope (29)
- The Ability Of Budget Adequacy Moderates The Effect Of Budget Participation On Budgetary Slack (36)
- Women in Pather Panchali (45)
- Multiculturalism and Golbalisation (48)
- Constructing Identity: Gender and Sexuality in Shyam Selvadurai’s Cinnamon Gardens (53)
- Ecofeminism and value based social economy in feminine literature: Allied resistance to the age of Anthropocene (57)
- Unseeing Eyes: GazeandAddressin Dedh Ishqiya (64)
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- The Influence Of Multiculturalism In The Tradition Of Contract: The Private Law Perspective (126)
- Incorporating The Concept Of Sustainable Tourism Into Legislations And Regulations In Indonesia (133)
- Effect Of Spirituality On Sexual Attitudes & Sexual Guilt (141)
- The Impact Of Gender, Age And Work Tenure On Psychological Capital (156)
- A Review Of The Psychological, Social And Spiritual Benefits Of Tourism (162)
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- The Social Practice Of Halal Tourism-Based Religiosity Value Of Pancasila In The Community (189)
- The Study On Political Branding As A Catalyst In Tourism Marketing With An Indian Perspective (194)
International Peer-Reviewed Journal
RESEARCH HORIZONS, VOL. 7 SEPT. 2017
INCORPORATING THE CONCEPT OF SUSTAINABLE TOURISM
INTO LEGISLATIONS AND REGULATIONS IN INDONESIA
*
Ni Gusti Ayu Dyah Satyawati
I Gusti Ngurah Wairocana
I Ketut Sudiarta
I Made Budi Arsika
Sagung Putri M.E. Purwani
*
*
*
*
ABSTRACT
The concept of sustainable tourism has been globally accepted and endorsed by international society.
In order to ensure its implementation in practice, States over the world are working to transform such
concept into its national laws. This article is aimed at analyzing both the relevance and the means of
incorporating the concept of sustainable tourism into the legislations and regulations, with the case
study of Indonesia. It is a legal writing that analyzes some legal instruments, especially Indonesian
national laws and regulations besides some relevant international documents. This article concludes that
the case of Indonesia may be used as a lesson-learned of how such concept has been further transformed
to many legislations and regulations on tourism at the national, provincial, and regency/municipality
levels in various ways. This writing also provides a recommendation to the socio-legal researchers to
study the effectiveness of legislations and regulations in concern.
Keywords: Incorporation, Sustainable Tourism, Legislation, Regulation, Indonesia.
Introduction
During the celebration of the World Tourism Day and National Tourism Day on 23 September 2015, Indonesian
Minister for Tourism Arief Yahya stated that the Law No. 10 Year 2009 on Tourism (Indonesian Tourism Act) has
embraced the basic concepts of “sustainable development” and “responsible and sustainable tourism” in the
principles of tourism. The statement seems to emphasize that the concept of sustainable tourism has become
an integral part of the tourism law in Indonesia. From the academic perspective, this matter leads to questions
regarding whether such concept is in line with the objectives of conducting tourism activities in Indonesia and
whether it can be integrated and incorporated into Indonesian laws relating to tourism issues.
There have been many programs designed to implement the concept of sustainable development in Indonesia.
For instance, in 2015 the Ministry of Tourism, has been developing sustainable tourism development programs
in cooperation with various stakeholders such as societies and universities in 20 regencies/municipalities in
Indonesia. Expert Staff Minister of Tourism Hari Untoro expressed his optimism that these programs would
make the number of tourist visits in 2019 to reach 20 million people, as targeted.
Unfortunately, these programs also draw some criticisms. Sambas Basuni, for example, a Professor of Forest
Area Management of the Bogor Agricultural University, requested that the Sustainable Tourism program being
promoted by the Ministry of Tourism of Indonesia be transformed into environmentally sound Tourism. According
to Sambas, constitutional provisions which, among others, ensure that everyone has the right to live in physical
and spiritual prosperity and to enjoy a good and healthy environment are often hidden by the rulers and also
defeated by local regulations only for only the sake of economic development. He also argued that an
environmentally sound-tourism investment would value of profit 10 times more than other sectors.
Research on sustainable tourism has been done quite extensively in various perspectives. There have been
studies that analyze the condition of sustainable tourism in a socio-cultural dimension (i.e Maria Pia Adiati and
Anwar Basalamah, 2014) as well as research that analyzes the impact of tourism development from the aspect
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of the development of the gap of economic value, condition of society, and environment.(i.e Willy Arafah, 2015)
Unfortunately, legal analysis on the concept of a sustainable tourism has not been so much carried out.
Identification of the concept of sustainable tourism in the rule of law in Indonesia then becomes very important
to be carried out because the existence of the rule of law that implements the concept of sustainable tourism
will ensure the sustainability of the implementation of tourism. Appropriate legal instruments undoubtedly can
minimize environmental damage as well as prevent social and cultural problems that potentially arise as a result
of the implementation of tourism activities that are not in accordance with the concept. This article basically
gives a concern on this issue.
Purposes and Writing Method
This article is a synthesis of a legal research (Satyawati, Ni Gusti Ayu Dyah, et.al, 2016), that has been further
developed and reconstructed, in the field of law and tourism. The concern of this research is how to transform
the concept of sustainable tourism that has been globally endorsed by States and international organizations
into laws and regulations. It can be argued that the transformation from a scientific and operational concept
into a legal concept, or even, a norm, will definitely ensure its effectiveness at practice. In more specific
purposes, this writing is primarily aimed at analyzing both the relevance and the means of incorporating the
concept of sustainable tourism into the legislations and regulations in Indonesia.
As a legal writing, it analyzes some legal instruments, especially Indonesian national laws and regulations
besides some relevant international documents. There are two models of legal analysis used. Firstly, it uses a
descriptive-analytic that describes and explains relevant laws and legal facts. Secondly, a juridical technique
model is adopted especially when discussing the method of incorporation in accordance with the technique of
legislative drafting.
III. Analysis
III.1. Sustainable Tourism: A Widely Accepted Concept
The concept of sustainable tourism has been globally disseminated. The United Nations World Tourism
Organization (UNWTO), as appears in its official website, defines it as “Tourism that takes full account of its
current and future economic, social and environmental impacts, addressing the needs of visitors, the industry,
the environment and host communities”.
The Manila Declaration on World Tourism reflects the concern of States for sustainable tourism. They entrusted
the World Tourism Organization with the task of ensuring the harmonious and sustained development of tourism,
in cooperation, in appropriate cases, with the Specialized Agencies of the United Nations and other international
organizations concerned (Manila Declaration on World Tourism, 1980, para 3)
In 1989, the Inter Parliamentary Conference on Tourism, a conference that was jointly organized by the Inter
Parliamentary Union (IPU) and the World Tourism Organization (WTO) at the invitation of the Netherlands Inter
Parliamentary Group, successfully created the Hague Declaration on Tourism. One of the principles contained
in this declaration declares that in view of this intrinsic interrelationship between tourism and environment,
effective measures should be taken to, among others, promote the integrated planning of tourism development
on the basis of the concept of sustainable development. (The Hague Declaration on Tourism, Principle III 2.b)
The 1995 Charter for Sustainable Tourism holds the three main criteria of sustainable tourism development,
namely; ecologically bearable in the long term, economically viable, and ethically and socially equitable for
local communities. It also declares that tourism should contribute to sustainable development and be integrated
with the natural, cultural and human environment.
The United Nations General Assembly also adopted a resolution that promotes sustainable tourism. This resolution
invites some stakeholders (including governments) to encourage and support best practices in relation to the
implementation of relevant policies, guidelines, and regulations in sustainable tourism as well as to implement
and disseminate existing guidelines. It also encourages the Member States to promote investment in sustainable
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tourism in accordance with their national legislation, which may include creating small and medium-sized
enterprises, promoting cooperatives and facilitating access to financing through inclusive financial services,
including microcredit initiatives for the poor, for indigenous peoples and for local communities in areas. (A/
RES/69/233, Paragraphs 8,10)
Many types of tourism also use the concept of sustainable tourism. The first example is in the field of spiritual
tourism where international communities agreed to undertake their efforts in order to create adequate conditions
for a responsible and sustainable use of living cultural assets in the development of spiritual tourism. (Ninh Binh
Declaration on Spiritual Tourism for Sustainable Development, 2013, Para 2). Next, this concept was also
adopted in the context of tourism in mountain areas as can be seen in the Babia Góra Declaration on Sustainable
Tourism Development in Mountain Areas.
III.2. Approaches in Transforming the Concept of Sustainable Tourism into the Laws and Regulations
Studies on aspects of legislation and regulations related to sustainable tourism have been carried out by a
number of academics. John M. Jenkins and Mucha Mkono, for example, discusses sustainable tourism legislation
and regulation (Michael C. Hall, et al, 2015). We can also explore the study of the interaction between law and
tourism with the aim to achieve sustainable tourism as conducted by Michael Faure, Ni Ketut Supasti Dharmawan,
and I Made Budi Arsika. They introduce the following thought:
“
What has, so far, been less discussed is how law, legal institutions and legal instruments can play a role in the
development of this so-called sustainable tourism. Indeed, in many ways legal instruments and institutions can
play an important role in promoting sustainable tourism. How exactly that process takes place and how legal
institutions can be developed with that aim has, however, largely been neglected in legal literature. Hence, the
central focus of this book is the interaction between law and tourism with a view to attaining sustainable
tourism.” (Michael Faure, et.al, 2014:2).
Regarding approaches to transforming the concept of sustainable tourism into laws and regulations, it is
important to review some comparative studies. Aleks Prifti and Engjellushe Zenelaj, two academics from Ismail
Qemali University of Vlora, Albania linked law enforcement and other issues with the development of sustainable
tourism in Vlora, Albania. They discovered and assessed some interesting phenomena in the following statement:
“Lack of enforcement of planning legislation and other local normative acts, mismanagement of public property
and the lack of registration, etc. are some of the key problems in the development of sustainable tourism in the
region of Vlora. Process has seen as great opportunity for not only sustainable tourism development, but also
for sustainable development in the whole Vlora region. Tourism development in Albania faces a number of
challenges.” (Aleks Prifti and Engjellushe Zenelaj, 2013:289)
In addition, a review of the Bhutan government’s role in sustainable tourism policy was written by Simon Teoh
in a chapter in a book entitled “The Governmentality approach to Sustainable Tourism: Bhutan’s tourism
governance, policy, and planning”. He argued that the governmental approach to sustainable tourism is a
paradox that results in unpopularity for government expansionist tourism policies. (Simon Teoh in Michael
Hughes et.al (Eds), 2015)
It is also interesting to observe a law-degree research written by Navamin Chatarayamontri which discusses the
link between sustainable tourism and the law. In this writing, the author argued that “in order to achieve the
sustainable tourism, the government needs the right tools to create better decision-making, such as by including
a Strategic Environmental Impact Assessment and public participation”. (Navamin Chatarayamontri, 2009: 145)
III.3. The Role of the Government in Transforming the Concept of Sustainable Tourism
Article 2 (h) of Indonesian Tourism Act states that “sustainable” is one of the principles in the implementation of
Tourism. This Act also clearly states that the Government (both the national Government and the Local
Government) is the stakeholder “in the field of tourism which has the authority to regulate and manage tourism
affairs in accordance with the provisions of the legislation. (Article 18 and Elucidation of Article 9 (4) of Indonesian
Tourism Act)
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It is an obligation of the National and Local Government to supervise and control tourism business in preventing
and control various negative impacts on the society at large. Besides, they also have the authority to create a
master plan for tourism development (Articles 23 (1)(d), 28, 29, and 30 of the Indonesian Tourism Act).
From the institutional perspective, the Indonesian Ministry of Tourism is the spearhead for the realization of the
concept of sustainable development at the national level. This ministry has the task to assist the President in
organizing governmental affairs in the field of tourism as regulated in Article 2 of the Presidential Regulation No.
1
9 Year 2015. Further, Article 3 of this presidential regulation makes clear that the Ministry organizes a number
of functions that can realize the concept of sustainable development. This includes, among others, functions in
formulating and issuing tourism policy, implementing tourism policies, and coordinating and synchronizing the
implementation of tourism policies.
III.4. Program of Legislation: A Strategic Mechanism to Incorporate the Concept of Sustainable Tourism
Ideally, the concept of sustainable tourism can be transformed into not only the legislations and regulations at
the national level but also into the provincial and regency/municipality regulations. An important question
about this matter is how to do the incorporation.
At the level of national legislation, Articles 1 (9) and 16 of the Law No. 12 Year 2011 concerning Legislative
Drafting (Legislative Drafting Act) implies that the entrance to a concept can be adopted at the stage of
Planning the drafting of the Act through the national legislation program (Program Legislasi Nasional/Prolegnas)
which is the instrument of planning the program of the creation of Law which is arranged in a planned, integrated,
and systematic way. Prolegnas is indeed a very strategic instrument to incorporating a concept. As confirmed
in Article 19 of the same Act, prolegnas covers program of the creation of law that includes the title, substance
and the relation with other law and regulations that explain the background, purposes, objectives, scope, and
direction of the expected law, based on the academic paper that comprises of reviews and harmonization
process.
At the provincial level, the drafting of Provincial Regulations is carried out in the provincial legislation program.
A little bit similar to the process at the national level, Article 33 of the Legislative Drafting Act determines that
conceptions of the draft of provincial regulations cover the following elements: background and purposes;
objectives; subject matter, scope, or object to be governed; and the scope and direction of the expected
regulation. In addition, an academic paper is also required as a conceptual basis. Provisions applied for
provincial regulations shall also apply mutatis mutandis to regency/municipality legislative programs.
It should be acknowledged that program of legislation is not a purely legal procedure but it is also a political
process that works for hand in hand. Therefore, the political will of the persons, who act in their official capacity,
may play an important role in the program of legislation. In this regards, it seems that the intention to transform
the concept of sustainable tourism should be firstly done continuously and by repeatedly convincing them
about the relevance of sustainable tourism in the laws and regulations.
III.5. Incorporating through Master Plan of Tourism Development
It can be argued that incorporation through tourism master plan is a very important means. The National
Medium-Term Development Plan (Year 2015-2019), as stipulated in the Presidential Regulation No. 2 Year
2
015, states explicitly the ‘mainstreaming sustainable development’. In relation to the field of tourism, this
document includes an understanding that characteristics of tourism development are multisectoral and
multidimensional, entails that the development of tourism in the destination area requires the involvement of
related stakeholders.
The National Tourism Development Master Plan (Year 2010-2025), as stipulated in the Government Regulation
No. 50 Year 2011, is a document that repeatedly mentions the phrase ‘sustainable tourism development’.
Article 2 (5)(d) of this Government Regulation determines that one of the national tourism development missions
includes the development of Governmental organizations, local governments, private entities and societies,
human resources, regulations, and effective and efficient operational mechanisms in order to promote sustainable
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tourism development. Next, Article 2 (8) (a) of this document emphasizes that the direction of development of
national tourism includes the development of national tourism which is carried out in accordance with the
principle of sustainable tourism development. Moreover, Article 55 of this Government Regulation indicates the
concern of environmental responsibility and sustainable tourism development. It puts a concern that the direction
of environmental responsibility development policy is manifested in the form of tourism management development
which refers to the principles of sustainable tourism development, global code of ethics for tourism, and green
economy.
Master Plan of Regional Tourism of the Batu Bara Regency (Year 2014-2029) Regency Regulation of the Batu
Bara Regency No. 9 Year 2014 can be used as an example. Article 27 of this regulation states the followings:
“Development of environmental and social responsibility is carried out with the development of tourism business
management that refers to the principles of sustainable tourism development, Global Code of Ethics for Tourism,
and green economy, and encourage the growth of green economy along the chain of tourism industry that care
about environmental preservation and culture in the region.”
Another example is the master plan of regional tourism of the Tasikmalaya City (Year 2010-2025) that is stipulated
in the Annex of Municipality Regulation of Tasikmalaya City No. 8 Year 2014 concerning Implementation of
Tourism. One of the approaches used in the creation of this master plan is sustainable tourism development. It
is explained that sustainable tourism, in essence, must be able to integrate at least three dimensions, namely
the economic, environmental, and socio-cultural dimensions. In addition, this approach can ensure that planning
documents are economically viable, sustainable environmentally, and socially acceptable.
III.6. Indonesian Laws and Regulations that have Adopted the Concept of Sustainable Tourism
The previous analysis have described some legal instruments at the national level that underlines the need for
incorporating the concept of sustainable tourism development. This includes Indonesian Tourism Act, Government
Regulation No.50 Year 2011 concerning National Tourism Development Master Plan (Year 2010-2025), Presidential
Regulation No. 2 Year 2015 concerning National Medium-Term Development Plan (Year 2015-2019), and
Presidential Regulation No. 19 of 2015 on the Ministry of Tourism.
It is worth to acknowledge that many local regulations have incorporated the concept of sustainable tourism.
Interestingly, the incorporation is performed by various means. The next analysis will be based on the structure
of law and regulation as guided in the Technique of Legislative Drafting, as covered in Annex II of the Law No.
1
2 Year 2011 concerning Legislative Drafting. It is outlined that a law or regulation must be designed in accordance
with a specific path that consists of Judul (Title), Pembukaan (Preamble), Batang Tubuh (Main Body), Penutup
Concluding Section), Penjelasan (Elucidation/Explanation-if needed), and Lampiran (Annex, if needed).
(
III.6.1. Sustainable Tourism in the Preamble of a Tourism Regulation
The first means is an incorporation in the part of the preamble. A preamble consists of some elements, including
what is called as Konsiderans (Consideration). As prescribed in the Technique of Legislative Drafting, the
consideration contains a brief description of the principal thoughts that were considered and the reasons for
the establishment of the legislation that must include the philosophical, sociological, and juridical elements.
We can take the example of such means of incorporation in the Provincial Regulation of the Special Capital
Region of Jakarta No.6 Year 2015 concerning Tourism that considers the needs of managing the resources and
capital of tourism development in a more systematic, planned, integrated, sustainable, and responsible manner.
III.6.2. Sustainable Tourism in the Main Body of Tourism Regulation
The second method of incorporation is by transforming the concept of sustainable tourism into the main body
of a regulation. As prescribed in the Technique of Legislative Drafting, the main body may contain Ketentuan
Umum (General Provisions), Materi Pokok yang Diatur (Regulated Subject Matter), Ketentuan Pidana (Penal
Provisions-if needed), Ketentuan Peralihan (Transitional Provisions-if needed) and Ketentuan Penutup (Closing
Provisions).
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3
.6.2.1. Sustainable Tourism is Included in the Legal Definition of Tourism
Referring to the Technique of Legislative Drafting (Paragraphs 98, 107), general provisions contain, among
others, definitions that must be formulated in a clear sentence to avoid multi interpretation. A definition consists
of some words and phrases that reflect some concepts. The Provincial Regulation of Bali Province No. 2 Year
2012 concerning Cultural Tourism of Bali may be used as an example, where the concept of sustainable tourism
is adopted. The definition of cultural tourism of Bali appears in Article 1 (14) of this regulation, that can be read
as follows:
“
Balinese tourism based on Balinese culture, inspired by Hinduism and the Tri Hita Karana philosophy as the
main potential by using tourism as the vehicle of its actualization, in order to create a dynamic interrelationship
between tourism and culture that makes them develop synergistically, harmoniously and sustainably, to be
able to provide prosperity for the community, culture preservation and environment”
3
.6.2.2. Sustainability is Recognized as a Principle in Performing Tourism Development
It is generally practiced that many regulations explicitly mention some principles that inspire the norms contained
in such regulations. The principles are usually part of the main body, that is placed after general provisions. The
other method of incorporation is the formal recognition that “sustainability” is one of the principles where
tourism is organized on a sustainable basis. This method can be seen in many local regulations: Article 2 (h) of
the Provincial Regulation of Lampung Province No. 6 Tahun 2011 concerning Tourism, Article 2 of the Regency
Regulation of Tulungagung Regency No. 6 Year 2012 concerning Tourism, Article 2 (h) of the Regency Regulation
of Badung Regency No. 2 Year 2012 concerning Tourism, Article 2 (b) of the Regency Regulation of West
Bandung Regency No. 7 Year 2013 concerning Implementation of Regional Tourism, Article 2 of the Regency
Regulation of Gianyar Regency No. 10 Year 2013 concerning Culture Tourism of Gianyar Regency, and Article
2
of the Regency Regulation of Buleleng Regency No. 1 Year 2014 concerning Implementation of Tourism.
3
.6.2.3. Sustainability is Included in the Purposes and Objectives of a Tourism Regulation
The other incorporation technique is by including sustainable tourism into the purposes and objective of a
regulation that covers the issue of tourism. This is the case of regional regulation that has been adopted by the
local government in Lampung, a province that is located in the southeast part of Sumatra island. Article 4 (c) of
the Provincial Regulation of Lampung Province No. 6 Tahun 2011 concerning Tourism mentions that the objectives
of this regulation are, among others, to provide guidance in the planning, development, management, and
development of tourism destinations based on community empowerment and sustainable environment.
3.6.2.4. Sustainability becomes the Substance of the Regulation
According to Article 236 (3) of the Law of the Republic of Indonesia No. 23 Year 2014 concerning Local
Government, the regional regulation may cover substances that relate to the implementation of Regional
Autonomy and Assistance and further elaboration of the provisions of the legislation are higher. In this regards,
incorporation may be done by inserting the concept in concern into the substance of the regulation. For
example, Article 73 (2) (e) of the Provincial Regulation of Special Capital Region of Jakarta No.6 Year 2015
concerning Tourism determines a rule that enables the granting of incentives to tourism enterprises that develops
a sustainable and environmentally sound business.
3.6.3. Sustainable Tourism in the Elucidation of Tourism Laws and Regulations.
Elucidation is official interpretations by the drafters of law or regulation that is used as a means to clarify the
norm in the main body. (Technique of Legislative Drafting, Paragraph 176). There has been an example where
principle of sustainable tourism development is placed in the Elucidation over Article 6 (2) of the Provincial
Regulation of Special Capital Region of Jakarta No.6 Year 2015 concerning Tourism
IV. Concluding Section
Facts that many international documents have adopted the concept of sustainable tourism undeniably indicate
its relevance in the tourism development. Global acceptance of this concept also leads to the efforts by States
over the world to incorporate it into its national laws and regulations. The case of Indonesia is a picture how
sustainable tourism, as a concept, has been further transformed to many laws and regulations on tourism. It has
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not only adapted in laws at the national level but has even massively incorporated in many local regulations at
the provincial and also regency/municipality levels. It is worth to notice that this article shows the means of such
incorporation that are performed in various ways. This indeed can be used as a practical lesson-learned by
other countries that pay their attention to tourism development.
This research also indicates some further works to be done in the future. As this research merely focuses on the
normative aspects, it is recommended to the socio-legal researchers to study the effectiveness of legislations
and regulations that have officially incorporated the concept of sustainable tourism.
References :
Books
Faure, Michael, Ni Ketut Supasti Dharmawan, and I Made Budi Arsika, 2014, Sustainable Tourism and Law,
Eleven International Publishing, Den Haag.
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Stefan Gossling, and Daniel Scott (Eds), 2015, The Routledge Handbook of Tourism and Sustainability,
London.
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Tourism: Resolving the Paradox, Routledge, New York.
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2
010-2025)
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019),
2
Presidential Regulation No. 19 Year 2015 concerning the Ministry of Tourism
Provincial Regulation of Lampung Province No. 6 Tahun 2011 concerning Tourism
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Provincial Regulation of Special Capital Region of Jakarta No.6 Year 2015 concerning Tourism
Regency Regulation of Badung Regency No. 2 Year 2012 concerning Tourism
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Tourism
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Regency Regulation of Buleleng Regency No. 1 Year 2014 concerning Implementation of Tourism
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(
Year 2014-2029).
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pembangunan-pariwisata-berkelanjutan-dikembangkan
Guru Besar IPB Kritik Program Pariwisata Berkelanjutan, Bogorpos.com, 8 October 2015,
http://bogorpos.com/2015/10/08/guru-besar-ipb-kritik-program-pariwisata-berkelanjutan/
v*Lecturers at Faculty of Law, University of Udayana, Bali-Indonesia.
Email: [email protected], ngu[email protected]
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