1. En el derecho colombiano
1.1. Aplicación del principio de planeación en la etapa precontractual
Widely acknowledged as the oldest and most popular actor in the climate movement (Duwe 2001; Garrelts 2014; Guldbrandsen & Andresen 2004), CAN-‐I claims a
membership of “over 1100 NGOs in over 120 countries” and describes its mission as being “to promote government and individual action to limit human-‐induced climate change to ecologically sustainable levels” (CAN-‐I n.d., viewed 8 January 2017). Originally constituted as the Climate Action Network (CAN) and renamed Climate Action Network International in 2004 (CAN 2014), this umbrella organisation represents the reformist wing of the climate movement and was established as a coalition of NGOs in 1989 “with the central objective of ensuring the 1992 UN
Conference on the Environment and Development (UNCED) would implement strong emissions reductions” (Steger, Goodman & Wilson 2013, p. 137).188
187 As Connelly (2007) points out, ‘sustainable development’ is a contested concept, and
different definitions of ‘sustainability’ and ‘sustainable development’ favour a variety of political projects (see also Brown 2016; Connelly 2007; Hadden & Seybert 2016; Ross 2009). Definitions of sustainable development that locate it within a context of ‘green capitalism’ are sometimes used to support neoliberal governmentality while other definitions support radical socialist egalitarianism and yet others support a range of positions in between.
188 NGO participation in UN events pre-‐dated UNCED, however. Willetts (1996, pp. 57,
67-‐68) identifies the 1972 Stockholm Conference (the UNCHE) as a ‘turning-‐point’ with respect to NGO participation in UN events, and attributes this largely to the influence of conference Secretary-‐ General, Maurice Strong, who “contributed significantly to overcoming the opposition to participation by NGOs”.
CAN-‐I has a complex organisational structure, and only some features of its organisation and operations are discussed here.189 In 2015, CAN-‐I members were organised into ten regional and eleven national networks (called ‘nodes’), and there were also 16 working groups tasked with formulating the network’s policy positions and briefs on various issues (CAN-‐I 2016).190 The policy briefs culminate in CAN-‐I’s annual policy document (for example, refer to CAN 2015), which is used to support its advocacy of various issues in UNFCCC negotiations (CAN-‐I 2016). Apart from its ‘insider’ advocacy activities as a registered CSO observer at the COPs (Dombrowski 2010), CAN-‐I members also contribute in many valuable ways to information
dissemination during the official climate change meetings by, for example, providing updates on the progress of the negotiations via their daily newsletter, ECO, a
practice established in 1990 (CAN 2014; Carpenter 2001).191 Information about the progress of official climate change negotiations and CAN-‐I activities is also
disseminated through its websites, the first of which was established in 1998 (CAN 2014). In addition to its ‘insider’ tactics of working with officials in COPs, CAN-‐I members also engage in ‘outsider’ tactics like protest marches and other publicity-‐ raising campaign events. The ‘Fossil of the Day’ award, presented to the countries whose representatives have most obstructed official negotiations on any given day,
189 Refer to the CAN-‐I website (n.d.), CAN-‐I key documents (2014, 2015, 2016),
Dombrowski (2010) and Duwe (2001) for more detailed descriptions and analyses of CAN-‐I’s organisational structure and operations.
190 CAN-‐I 2015 working group themes included ‘Adaptation and loss & damage’, ‘Legal
Issues’, ‘Flexible Mechanisms’, ‘Finance’, and ‘NGO Participation’ (CAN-‐I 2015).
191 Dellmuth and Tallberg (2017, p. 2) define ‘insider strategies’ as “activities which aim
to influence political outcomes through direct interaction with decision-‐makers” and ‘outsider’ strategies as “activities which aim to influence outcomes by putting pressure on decision-‐makers through the mobilisation of public opinion.” Guldbrandsen and Andresen (2004) note that ‘a particularly large contingent’ of US-‐based NGOs use insider tactics. Many NGOs typically use a combination of insider and outsider tactics in pursuit of their aims (Dalmuth & Tallberg 2017; Guldbrandsen & Andresen 2004). While CAN-‐I does adopt such a dual strategy, the climate justice movement does not. CJN! was, in fact, established by a coalition of individuals and groups opposing CAN-‐I ‘insider’ tactics; it was the outcome of a ‘counter-‐mobilisation’, which occurs “when issues are politically contentious” (Dellmuth & Tallberg 2017, p. 6). Redistributive demands, such as those the climate justice movement supports, are particularly likely to be “highly politicised because of their transparent implications for costs and benefits” (Dellmuth & Tallberg 2017, p. 6).
demonstrates the humour employed in some CAN-‐I ‘outsider’ tactics (CAN 2014, 2016).192
Steger, Goodman and Wilson (2013, p. 137) describe CAN-‐I as being initially
‘relatively agnostic’ about how to achieve the GHG emission reductions required to limit anthropogenic global warming, although Bedell and Görg (2014, pp. 48 -‐ 49) comment on how, prior to the adoption of the Kyoto Protocol in 1997, CAN-‐I’s position statements were critical of market mechanisms such as emission trading schemes (ETS), the CDM, and JI projects because of the potential these had to be ineffective in reducing GHGs as well as their potential to exacerbate social
inequalities. Bedell & Görg (2014, p. 49) argue that after the adoption of the Kyoto Protocol, CAN-‐I’s positions became increasingly aligned with officially-‐sanctioned policy approaches, and civil society actors under its umbrella came to be “integrally involved in (re-‐)producing the emerging hegemonic consensus” of turning to the market to solve the climate crisis, thus contributing to the legitimation of solutions that de-‐emphasise both wider ecological issues and social justice issues (see also CAN 2014 and Steger, Goodman & Wilson 2013). Taking advantage of the disputes between the fossil fuel and renewable energy factions of the transnational capitalist class, CAN-‐I supports the neoliberalising project of creating a ‘green economy’: while calling for an immediate end to fossil fuel subsidies, it simultaneously urges a
transition to a global economy powered by renewable energy by 2050 at the latest and supports a variety of market instruments to facilitate this transition (CAN 2015). The argument that ‘green capitalism’ constitutes the continuation of the
neoliberalisation project (Goodman & Salleh 2013; Kenis & Lievens 2016) is evident in how it is being promoted not only by representatives of emerging renewable technology industries and their allies (like CAN-‐I), but also by institutions such as the World Bank and the IMF, as well as by other financial institutions working to
commodify the natural resources that all life depends on: resources such as water (much of which has already been commodified and privatised), the atmosphere (by
192 Refer to Small Window, Bright Light: A history of Climate Action Network (CAN 2014)
for personal accounts of CAN participant experiences, including memorable events such as the ‘Fossil of the Day’ awards.
putting a price on carbon), forests, and soil (Adelman 2015).193 While not linking its policies overtly to the neoliberal project of commodifying nature, CAN-‐I’s support for this project is clearly evident in its most current Annual Report (CAN 2016) and annual policy document (CAN 2015), where it insists on the need to accurately monitor, measure and record ‘sources and sinks’ of GHG emissions. While CAN-‐I justifies its promotion of robust Monitoring, Reporting and Verification (MRV) procedures in terms of using them to ensure the environmental effectiveness of REDD+ and Land Use, Land Use Change and Forestry (LULUCF) projects (CAN-‐I 2015), verifiable measurement and accurate record-‐keeping are also necessary steps in the creation of new commodities that can be traded (Adelman 2015; Newell & Bumpus 2012).194
CAN-‐I’s support for this expansive neoliberalisation project that aims to marketise the entirety of nature is, perhaps, motivated by ‘pragmatic’ considerations regarding what CAN-‐I leaders perceive as realistic and achievable, but it is also at least partially attributable to the narrow, technical focus on GHG emission reductions that prevails as the solution to global warming within the network. Contesting ideas from the smaller and less powerful NGOs from the Global South that are concerned about the economic and social implications of market mechanisms such as REDD+ and LULUCF are marginalised because of the relative power of the large, established North American and Western European NGOs within CAN-‐I (Bedell & Görg 2014;
193 Commodification entails assigning monetary value to an entity so that it can be
traded in markets. Schrijver (2016, pp. 1252 – 1253) defines the ‘global commons’ as “areas and natural resources that are not subject to the national jurisdiction of a particular state but are shared by other states, if not the international community as a whole,” and argues that “certain global natural assets, such as the climate system, the air, water, seeds, winds and sunshine, could also be viewed as global commons in view of the vital ecological functions that they perform for the Earth and its population.”
194 Newell and Bumpus (2012) draw attention to the relationship between the
seemingly ‘technical exercises’ of measurement and the ‘intricate politics’ of commodifying carbon: “Carbon has to be rendered manageable, containable and quantifiable, fungible in value, and commensurate to be tradable as a commodity. What appear as mere technical exercises in measuring, accounting, and verifying emissions are deeply political…” (Newell & Bumpus 2012, p. 55). Bäckstrand & Lövbrand (2006) also provide a comprehensive account of the central role that technocratic activities such as measurement, monitoring and certification play in dominant climate change governance discourses and policies.
Dombrowski 2010; Duwe 2001; Steger, Goodman & Wilson 2013).195 Some of these larger and well-‐resourced CAN-‐I members are known for their promotion of market solutions to climate change; for example, the EDF has a reputation of working ‘relentlessly’ to promote market-‐based approaches in the climate negotiations and of consistently opposing NGO positions that do not conform to US climate change negotiators’ goals (Guldbrandsen & Andresen 2004; see also Hestres 2015).196 Other CAN-‐I members, such as WWF, have even taken an active role in implementing neoliberal market solutions by helping to develop certification instruments such as the ‘Gold Standard,’ a tool designed to assess the alignment of CDM projects and environmental standards (Bedell & Görg 2014; CAN 2014; Headon 2009).197