| The Amendment to the Constitution of the People’s Republic of China(2018)has elevated "ecological civilization construction" to the fundamental law level,and proposed to "promote the harmonious development of material civilization,political civilization,spiritual civilization,social civilization and ecological civilization".Ecological civilization is a new type of civilization developed by human society after agricultural civilization and industrial civilization,and is the sum total of material and spiritual achievements made by human beings in the course of economic and social development based on their understanding of and adherence to the laws of nature.Taking into consideration the current ecological civilization construction in China,the restoration and protection of ecosystem and the construction of ecological civilization system,have become one of the key contents.Due to man-made and natural reasons,the ecosystem of some areas in China has become fragile or overloaded,unable to bear people’s production activities.Therefore,it is necessary to restore the ecology by reducing human activities.Ecological migration-a new way of migration after engineering construction migration in China-is an important step to relieve and eliminate the tension between man and nature in the new historical stage,which is also an important part of ecological civilization construction.Since the anti-poverty project in “Hexi,Dingxi,Xihaigu” regions was launched in the 1980 s,China’s ecological migration project has been implemented for more than 30 years,and the ecological environment of the migrant areas has been effectively protected.In recent years,as China’s environmental problems have become more prominent and China has made in-depth progress in poverty alleviation,the importance of ecological migration has been further emphasized,and ecological migration has become scaling up.Since 2000,the number of ecological migrants in China has exceeded 7 million.China has a large number of ecological migrants,and there are many problems in the protection of rights.How to make ecological migrants fully entitled to the rights granted by law has a direct impact on their success in poverty alleviation.Establishing and improving the ecological migration rights protection system is not only the implementation of the principle for the state to respect and protect human rights,but also the institutional guarantee for the smooth development of ecological migration.From the perspective of civil rights protection,this paper applies the theory of civil rights protection to the specific field of ecological migration,to demonstrate the legal system of ecological migration rights protection.In addition to the introduction and conclusion,the main content of this paper consists of five parts.The specific content is summarized as follows:The first part is the "definition of ecological migration and its legal right connotation".Ecological migration,identification of ecological migration status and ecological migration rights are three important basic concepts and categories for ecological migration rights protection.Ecological migration refers to the migration activities or migrant population caused by the deterioration or destruction of ecological environment attributable to natural or man-made reasons.The concept of ecological migration has the dual meanings of "behavior" and "subject".The concept of ecological migration is the logical starting point of this paper.Due to the complexity of ecological migration itself,the identification of ecological migration status is the basis and premise of subjects entitled to rights and protection.As the subject of ecological migration status identification in China,the government has the dual role of migration project implementer and migrant status identifier,which violates the requirements of procedural justice.At the same time,the identification of ecological migration status in China lacks scientific standards,which is difficult to adapt to the complex situation in the process of migration in China.The identity of ecological migrants has dual attributes,which determines that ecological migrants are entitled to the basic rights granted by the Constitution and the law,and at the same time,it also derives special rights that are different from those of ordinary citizens due to the special identity of migrants.The second part is the “legal basis of ecological migration rights protection”.The protection of migrant group rights in ecological migration project has a profound legal basis.Ecological migration is advanced by the state to use public power for the purpose of the public interest of ecological environmental protection,thus the ecological migrant group is forced to make “special sacrifice”.In this case,the state and its social system need to guarantee the rights of ecological migrants.The protection of ecological migration rights is mainly based on the protection of human rights,the maintenance of public interests and environmental justice as its ultimate source.Ecological migration rights contain various comprehensive rights that ecological migrants should enjoy in the process of migration and after resettlement,including survival rights,development rights,property rights,the right to compensation,the right to social welfare,the right of environment,the right to development and other special human rights,all of which rights constitute the overall human rights of ecological migrants.The state needs to safeguard and protect the human rights of ecological migrants by building a welfare state system as well as undertaking the positive payment obligation and negative intervention obligation.The premise of the implementation of ecological migration is the need to maintain the social public interests,and the implementation mechanism is to restrict the minority rights of migrants to protect the public environmental interests.Therefore,maintaining the public interests of ecological environment has become the legitimate basis of ecological migration project.Environmental justice is a fair and equal state of justice reflected in the distribution of rights and obligations between different regions and groups in dealing with ecological environmental protection.There are multiple dimensions of environmental justice in ecological migration.According to social public ethics and legal norms,the state is required to promote the balance of rights and obligations among migrant groups,local residents and the public in the process of rights and obligations distribution to ecological migrants,so as to ensure the fairness and justice of social integrity before and after ecological migration.The third part is the "current legal system of ecological migration rights protection in China".After more than 30 years of ecological migration practice,China has gradually built up a relatively perfect legal system for the protection of ecological migration rights.The existing laws and regulations on the protection of ecological migration rights mainly involve the land rights,resettlement and compensation benefits,as well as the education rights,employment rights,social security and other rights after resettlement of migrants.In recent years,based on the existing legislation,China has accelerated relevant legislation in the fields of basic farmland protection and nature reserves,further fuelling the progress of legal systems in ecological protection.At the same time,there are still many shortcomings and deficiencies in the relevant laws and regulations regarding protecting the rights of ecological migration in China,which are difficult to meet the practical needs of ecological migration.China lacks special and systematic legislation on the protection of ecological migration rights.The legislation on migration is mainly scattered in various laws and regulations,characterized by the uneven level and rough stipulation,and mainly concentrated in the field of migration compensation.Many problems existing in the current legislation on the protection of ecological migration rights,such as the insufficient protection of the survival and development rights,the insufficient protection of the right to compensation,the absence of public participation,the insufficient social security and support rights and the obstructed remedies of rights,have greatly affected the protection of ecological migration rights.The fourth part is the "international experience and reference for ecological migration rights protection".The World Bank’s migration policies emphasize the minimization of the number of involuntary migrants,require not to reduce the living standard of migrants,encourage migrants to participate in the formulation and implementation of resettlement plans,improve the employment and adaptability of migrants,and attach great importance to environmental protection objectives in resettlement plans.The Asian Development Bank’s involuntary migration policies are basically in line with those of the World Bank,requiring that comprehensive resettlement plans be prepared,public participation in migration planning be emphasized,and that an internal and external monitoring mechanism be established and responsibility subjects be clearly defined.Japan attaches great importance to the construction of ecological migration legal system,emphasizes the compensation of property for individual migrants,employment placement and public participation in migration planning,and adopts economic measures such as taxation to restore and improve the living standard of migrants.Thailand’s ecological migration focuses on the realization of migrant labor employment through industrial transformation,migrant participation in resettlement planning,legislative protection of migrant rights,multi-support and participation in ecological migration resettlement.On the basis of institutional endogenicity,legal reference and transplantation are also important ways to promote the development and perfection of a country’s legal system.The protection policies and laws of the World Bank,Asian Development Bank,Japan and Thailand on the rights to involuntary migration have significant reference value for the protection of ecological migration rights in China: first,putting emphasis on public participation;second,focusing on the protection of land rights and interests of migrants;third,diversification and rationalization of compensation;fourth,paying attention to the protection of migrant labor employment;fifth,focusing on the supply of public services;sixth,supporting the participation of external agencies;and seventh,strictly supervising the evaluation mechanism.The fifth part is the “perfection of the legal system for the ecological migration rights protection in China”.In light of the lack of special and systematic ecological migration laws in China,the following basic principles should be followed to perfect the legal system of ecological migration rights protection: the principle of the unification of ecological protection and self-development of migrants,the principle of the protection of basic rights of ecological migrants,and the principle of the combination of market incentives and legal protection.In view of the problems existing in the legal system for the protection of ecological migration rights in China,it is required to perfect the legal system for the protection of ecological migration rights through the construction of the law and regulation system for ecological migration,the specific system design for the protection of ecological migration rights,the improvement of the standards and methods of the resettlement compensation,the perfection of the safeguard mechanism for the right to public participation and the right of relief.On this basis,it is possible to achieve the long-term goal of establishing the long-acting legal mechanism for the protection of ecological migration rights,promoting the construction of the effective mechanism for protecting the ecological environment and the perfection of the legal system for protecting ecological migration rights through ecological migration laws. |
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