There are many people who think that intent (or aim or motive or purpose or policy justification, or whatever you want to call it) should not be part of the National Treatment obligation. For these people, such issues are better left to exception provisions, such as GATT Article XX.
But there are some (including me) who do want to look at intent as part of National Treatment, in one way or another. Within this group, there seems to be a divide between those who want it in the "likeness" element and those who want it somewhere else, such as "less favorable treatment" for Article III:4 cases. (There was some discussion of this issue in the comments on these two posts). In this post, I'm going to try to briefly make my case for why it should be in "less favorable treatment," not "likeness." I got into this issue a bit here. Let me try to flesh things out a bit more now.
I'm not sure exactly how to characterize my reasons, but I think they are mainly "textual." Based on the words themselves, it seems to me that intent flows naturally from the phrase "less favorable treatment," but does not fit logically with "likeness." Let's look at the words.
Here are some definitions of "treatment":
The Free Dictionary: Treatment - The act, manner, or method of handling or dealing with someone or something
Cambridge Dictionaries Online: Treat - to behave toward (someone) or deal with (something) in a particular way
These may not be the best definitions, but they are online and easy to link to, and I think they are probably representative. Granted, neither definition talks explicitly about the intent of the actor. Nonetheless, I see in both of them the idea that the motives of the actor are relevant. The references to the "manner" or "method" of "handling or dealing with," and "behave toward" or "deal with" in "a particular way," all suggest to me that the thinking of the actor is part of the concept of "treatment." The "treatment" is about how the actor behaves (and also about the impact of the action, which is a separate issue).
So, it seems to me that the notion of intent flows naturally from the word "treatment." That applies to "less favorable treatment", of course, but also more generally to the "treatment" in National Treatment. As a result, when we talk about the intent behind a measure, it fits well into the idea of "treatment."
By contrast, likeness means:
The Free Dictionary: Like - Possessing the characteristics of; resembling closely; similar to.
Cambridge Dictionaries Online: Like - similar to; in the same way or manner as
Based on these definitions, it just doesn't make sense to me to say that because there is a legitimate policy justification for a measure, the products are not "like." There is nothing in "like" that reflects the intent of the actor. Rather, "like," in the trade context, means similarities between the products or services.
Of course, it's true that the policy justification might reflect differences in the product. One product may be banned because of a health risk, whereas another product which does not have the health risk may not be banned. But in that situation, it's not really the policy justification that makes the products different (and not "like"). It's the difference in health risks.
To me, the best way to address whether products are like is to focus on the competitiveness of the products. This will take into account all relevant factors, including health risks. For example, if one product has a health risk but the other does not, this will affect whether consumers consider them to be substitutable.
So that's my brief argument for why intent should be part of "treatment", not "likeness." I know some people disagree, so have at it in the comments if you'd like!
