Any time the Appellate Body says something about "purpose" (or "intent" or "aim" or "motive"), in whatever context, it's worth noting, because it may have broader implications. This is from the Australia - Apples AB report, in the context of the SPS Agreement Annex A(1) definition of SPS measures:
172. A fundamental element of the definition of "SPS measure" set out in Annex A(1) is that such a measure must be one "applied to protect" at least one of the listed interests or "to prevent or limit" specified damage. Subparagraph (a) brings within the scope of the definition measures applied to protect animal or plant life or health within the Member's territory from specified risks related to pests and diseases. The word "to" in adverbial relation with the infinitive verb "protect" indicates a purpose or intention. Thus, it establishes a required link between the measure and the protected interest. In that sense, the Appellate Body in Australia – Salmon referred to a Member's "appropriate level of protection" and explained that this level is an objective, and that the SPS measure is an instrument chosen to attain or implement that objective. We note, in addition, that the word "applied" points to the application of the measure and, thus, suggests that the relationship of the measure and one of the objectives listed in Annex A(1) must be manifest in the measure itself or otherwise evident from the circumstances related to the application of the measure. This suggests that the purpose of a measure is to be ascertained on the basis of objective considerations.
173. We consider that the meaning that has been attributed to the phrase "applied ... so as to afford protection" in the context of Article III:1 of the GATT 1994 may provide some assistance to the interpretative task before us. The language of Annex A(1)(a) to the SPS Agreement is similar to Article III:1 of the GATT 1994, to the extent that both provisions use the word "applied", and in both provisions this word is followed by the infinitive of purpose, namely, "to protect" or "to afford protection", respectively. With regard to Article III of the GATT 1994, the Appellate Body has opined that, although the purpose of a measure is not easily ascertained, it can often be discerned from the measure's design, architecture, and structure. A similar approach is called for under Annex A(1)(a) to the SPS Agreement. Whether a measure is "applied ... to protect" in the sense of Annex A(1)(a) must be ascertained not only from the objectives of the measure as expressed by the responding party, but also from the text and structure of the relevant measure, its surrounding regulatory context, and the way in which it is designed and applied. For any given measure to fall within the scope of Annex A(1)(a), scrutiny of such circumstances must reveal a clear and objective relationship between that measure and the specific purposes enumerated in Annex A(1)(a).
So, according to the Appellate Body, its previous analysis of "purpose" under GATT Article III:1 is relevant for examining "purpose" under Annex A(1). Presumably this interpretive approach works in reverse as well, so that everything said in Apples in the context of Annex A(1) applies to future cases involving Article III:1.
So what is interesting about what the Appellate Body said in Apples? Here's a key sentence: "[a measure's purpose is to be ascertained] not only from the objectives of the measure as expressed by the responding party, but also from the text and structure of the relevant measure, its surrounding regulatory context, and the way in which it is designed and applied." The first part indicates that the objectives "as expressed by the responding party" are relevant to the purpose analysis. A couple obvious questions: Just how relevant are they? Are they more or less important than the other factors?
As to these other factors, the Appellate Body mentions "the text and structure of the relevant measure, its surrounding regulatory context, and the way in which it is designed and applied." I've seen "text and structure" and "designed and applied" before in the context of Article III. I'm curious about the "surrounding regulatory context," though. I see that the Appellate Body used that term in China - Audiovisual Products (I didn't come across it in other Appellate Body reports, but I only looked quickly) when looking at China's Article XX(a) defense:
Whether the necessary objective link exists in a specific case needs to be established through careful scrutiny of the nature, design, structure, and function of the measure, often in conjunction with an examination of the regulatory context within which it is situated.
(See para. 230) What exactly is this "regulatory context"? How will this element be applied under Article III:1?
As a final point, it's great to have these elaborations related to Article III:1. The more interesting question, though, is how this will apply, if at all, to Article III:2, first sentence and Article III:4.
