The Durban platform decision states that the negotiations on post 2020 arrangements should result in a protocol or legal instrument or agreed outcome with legal force. A protocol or legal instrument refers to an instrument or agreement that has to be ratified by the Parties. Kyoto Protocol is one such agreement. However, agreed outcomes with legal force need not have the legal form of a protocol or a legal instrument. “Agreed outcome with legal force” gives flexibility to the developing countries to choose an appropriate form of outcomes that protects their interests.
For the legal form to be determined there has to be, first, an agreement on substance. Second, the agreements can have legal force even without the legal form of a protocol or instrument. The arrangements following the negotiations can be implemented either under the international law/agreement or under domestic and national legal provisions.
Moreover, a Legally Binding Agreement may include a mix of CoP decisions as well as protocols. Some of the decisions could be aspirational, while some of them could be binding. There could be protocols or other implementing agreements that would facilitate creation of bodies and institutions that would be needed to implement the decisions with differing degrees of binding-ness. A final decision on this will depend on the nature of the agreements reached following the negotiations. Hence the form cannot be prejudged at the start of the negotiations, the decision on this should come towards the end of the process.