Can you clarify whether informal notes can be a basis for negotiation or if conference room papers are required, and what is the status of the respective documents?
Informal notes carry no formal status in the UNFCCC process. A “Guide for Presiding Officers” prepared by the United Nations Climate Change Secretariat and revised in 2017, (hereafter “Guide”), offers the following on page 24:
“92. In the course of negotiations, presiding officers or Parties may also prepare so-called non-papers or informal notes to facilitate progress in the negotiations or to capture the positions of Parties. These non-papers or informal notes are prepared under the responsibility of presiding officers and/or Parties and have no formal status. These documents do not bear an official document symbol, are not part of the official record of the meeting. Although these non-papers and informal notes may sometimes be referred to in the report on the session for reasons of transparency or for practical reasons, their status remains informal.”
Although paragraph 92 above states that informal notes are, in some cases, prepared by Parties, our understanding is that, in practice, informal notes are produced by the chairs. By contrast, conference room Papers (CRPs) are usually produced by Parties: they are also informal papers issued during a negotiation session, containing new drafts or proposals from Parties or groups of Parties. The submission made by AILAC and the AGN on Tuesday, on APA agenda items 4 and 5, for example, is technically known as a conference paper (see http://www4.unfccc.int/sites/SubmissionPortal/Documents/201805090946—08052018%20CRP%20AGN%20AILAC%20on%20APA%20item%204%20and%205.pdf)
Although informal notes have no legal effect (“nothing is agreed until everything is agreed”) they can (and clearly are) used as basis for negotiations. Ultimately the basis of negotiations is decided by the Parties. Parties may give the Co-Chairs a mandate to prepare a text that will then serve as a basis for negotiation, and will often include wording to the effect that it will not omit or prejudge Parties’ views, thereby clarifying that Parties are at liberty to express other views in the future. The guide clarifies that such “texts of draft decisions and draft conclusions are normally prepared by presiding officers with the assistance of the secretariat and form the basis for negotiation.”(Guide at p.24).
The issue over CRPs was likely raised as a result of a concern by some Parties that their views put forward during the session would not be captured in informal notes. This can be addressed by Parties requesting that relevant submissions incorporating their views be attached to the informal note.