International agricultural trade regulation is once again at the heart of the Doha Development Round's collapse. Even if a deal had been reached on the basis of the Draft Modalities on Agriculture, it is not clear that a fundamental problem would be resolved: the relationship between trade and non-trade concerns, crucially the protection of the environment. Currently, members can use domestic support measures for non-trade objectives, but only if they do not impinge significantly on free trade in agricultural products; an ethos reiterated in the Draft Modalities.
However, if the ultimate goal of the Agreement on Agriculture is to reduce agriculture support and protection over time so that distortions to the market are removed, it is difficult to reconcile this goal whilst the Agreement simultaneously allows members to use trade-distorting measures to support non-trade objectives. Even if one accepts that the Agreement on Agriculture's goal is freer trade and not free trade per se, this inconsistency is not removed, as a decision still needs to be made regarding what level of 'protection' is acceptable at any given time during the operation of the existing rules. Despite suggested changes to the levels of protection in the Draft Modalities, there seems no indication what this acceptable level might be.
Until a decision is made to this effect, a conflict exists within the agreement and the current tension between members will remain. This article argues the problem is not the existence of a balance between removing trade barriers whilst protecting non-trade concerns, but rather the theoretical approach driving conclusions about how that balance should be achieved. In addition to moving towards a general commitment to the reduction in agricultural support measures, the Agreement on Agriculture also emphasises the need to achieve a 'fair and market-oriented trading system' 'having regard to non-trade concerns.'
Current thinking assumes that fairness is achieved by interpreting rules on the basis of an economic efficiency rationale (free trade): this approach is not inevitable however, but only reflects contemporary views of trade rules' purpose and how they should be interpreted in the light of that purpose. As our views of 'trade rules' purpose changes, so the theoretical underpinnings driving the rules' interpretation evolve. This article proposes such an evolution.