The Obama administration appears to be moving toward a different conclusion: as more countries accept the notion of international humanitarian intervention, they are making an informal amendment to the laws that are written in the U.N. Charter. This isn't the first time that new developments have overtaken old rules: in the 18th century, a country's "territorial water" was said to extend "as far as a cannon will carry" (about three nautical miles). By the 20th century, many countries were making larger claims over the high seas, and gradually the line was extended to its present distance of 12 nautical miles from shore.
The law changed as governments broke the old rule and asserted a new one. This is the international version of seeing the U.S. Constitution as a "living document" - it must be read in light of today's understandings.
To intervene lawfully in Syria, the U.S. will have to take the view that international law has changed since the U.N. Charter was written in 1945. As new challenges arise, the old rules are reinterpreted and remade. This makes it difficult to make definitive judgments about what is legal or illegal. For some, it may also clear a "legal" path for the U.S. to justify military action to defend the Syrian people from Assad.
Ian Hurd is associate professor of political science at Northwestern University and the author of "After Anarchy: Legitimacy and Power in the UN Security Council," "International Organizations: Politics, Law, Practice" and other works on the politics of international law. He is @ian_hurd on twitter.
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