Over at Opinio Juris, Roger Alford discusses the different policy exceptions included in the GATT and GATS "General Exceptions," and then says: "I have yet to discover a satisfactory explanation for the disparate treatment that the WTO drafters have given to the general exceptions in GATT versus GATS."
Along these same lines, there is the issue of the varying terms under the specific exceptions under the GATT, which require different degrees of connection between a measure and its goals. Some measures must be "necessary," others must be merely "relating to." My view has long been that the GATT drafters were not thinking about this in a very legalistic manner, and were just trying to make each exception read well. But recently, when doing a post about balance of payments issues, I came across this comment (see p. 13) from the original GATT negotiations regarding the meaning of "necessary" (in a different context):
The existing wording of paragraph 1 provides that import restrictions may be imposed "insofar as this is necessary" to safeguard the Member's position. Paragraph 2 sets out the requirements limiting the application and the extent of the restrictions, according to the circumstances of the Member. The words quoted from paragraph 1 presumably were not intended to have force in themselves, since paragraph 2 covers the same point in greater detail. There may possibly be some risk, however, that they could be interpreted to mean that import restrictions ware not "necessary" (and therefore were not permitted) until every other possible corrective measure (such as exchange control, exchange depreciation, etc.) had been tried and found inadequate. (emphasis added)
Based on this quote, it seems that perhaps the drafters were thinking more specifically about the meaning of the words they chose than I had imagined they were. So, maybe the differences within the GATT exceptions, and the differences between the GATT and the GATS, were intended, although this doesn't tell us why the drafters chose to make these distinctions.
