What the article fails to explain is that there are three broad categories of jurisdiction: territorial, personal, and subject-matter. Courts require all three jurisdictions to have power to hear a case; certainly in Common Law jurisdictions, but analytically the basic breakdown and principles carry over to any legal system.
When it comes to international relations, the point of tension almost always regards territorial jurisdiction. Exercise of territorial jurisdiction usually reflects an absolute and exclusive claim over resources, people (i.e. personal jurisdiction), and activities (i.e. subject-matter jurisdiction). But not always, and not necessarily. One way to cabin the effect of territorial jurisdiction when there exist or could exist overlapping claims of authority is to carefully qualify personal and subject-matter jurisdiction. (Remember, you need all three.) If you grant a court territorial jurisdiction but qualify personal and subject-matter jurisdiction to eliminate or minimize conflicting effective jurisdiction, then nobody will mistake your claim of territorial jurisdiction for a power grab.
The Slate article conspicuously doesn't mention that both the perpetrator and victim of the murder on T-3 were American nationals, perhaps because it would have simplified the problem and made the solution obvious to people without a legal background, even if they couldn't articulate it in legalese. From a theoretical perspective the fact that one of the parties, especially the perpetrator, was American basically resolves the whole thing. Nobody will care about your claim of territorial jurisdiction if you qualify personal jurisdiction to your own nationals. That's why the United States requiring and enforcing nationals living abroad to pay Federal income tax, even for foreign-sourced income, doesn't result in international incidents even though in such cases there's significant jurisdictional overlap--multiple sovereigns are laying claim to the same people and assets, but not in a threatening sense that nation-states would care about.
So the answer to T-3 was obvious. The only real problem was that the statutes and organic law granting jurisdiction at the time were too narrow on their face, and the courts were reticent to read into them jurisdiction, as American courts usually are (reticent). Predictably, and per Wikipedia, the consequence of T-3 was the passage of 18 U.S. Code § 7(7):
> The term "special maritime and territorial jurisdiction of the United States", as used in this title, includes: ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.
Now, that still requires in any particular case answering the question of whether another state had jurisdiction at the time of some event, but that question (or at least that type of question) is unavoidable. You don't need a complex, comprehensive international treaty and framework to resolve and fix these problems. In fact, it's usually premature to that do that without actual experience of real-world incidents as there is no universal solution to or metric for balancing competing jurisdictional interests. (Just as in programming: the best solution to a functional problem often only makes itself known after you see and analyze real-world cases. Often by trying to solve problems anticipatorily you end up with unnecessary and burdensome complexity, plus an incomplete solution because of unforeseen cases and exceptions.) Anyhow, international treaties can only ever offer incremental improvements, if at all, by applying the same basic principles and technique in ever finer detail. Thus we have clause 6,
> (6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard.
Which basically applies to spaceships the rule that already existed regarding traditional ships in international maritime law. I can imagine the courts of some countries assuming such jurisdiction implicitly by analogy with or extension of [their interpretation of] maritime law, without requiring new statutes. Indeed, that's how international maritime law developed--organically from practical necessity, basic legal principles, and recognition of customary behavior, usually preceding formal codification, if any.
The basic problems here are not at all new, and the answers are not at all difficult from an abstract perspective, especially once you recognize that overlapping claims of authority are natural and unavoidable--it's only the consequences that ultimately matter. (Indeed, reconciling conflicting claims of right is fundamentally what any legal system is about.) The issues only get "thorny" on a very technical level. Journalists and academics often use slight of hand (e.g. not specifying nationality) to make issues appear as weighty dilemmas, otherwise nobody would pay them any attention. Plus, people like reading about "gotchas" in the law, as it reinforces their notion that the law is arbitrary and contrary to common sense.
First, I'd like to express appreciation for a thoughtful and nuanced comment about how this might apply to space, and the boundaries of (extraterritorial?) law. This feels like a remarkably poignant summary of the issues involved, at least to an amateur.
While you did carve out the exceptions earlier for (my summary) laws essentially being created in reaction to actual events occurring, I think this misses some novel aspects at hand here. Citizenship, and by proxy the (choice?) of personal jurisdiction for persons born on another celestial body are certainly not issues that maritime law can provide absolute analogies for, if these realities come to pass with long term inhabitation.
As I think your comment implies, OST is wholly insufficient for any of these new problems, and so it does seem clear that there is a need to resolve ambiguities that might result from these scenarios via new international space agreements. How might we expect those to play out?
There's also the fact that ratification of OST (wholly or partially) might perhaps bring some standing to the issues at play, but there's really not all that much preventing a dissenting government from exiting it as well, despite international (Earth) condemnation. Orphaned citizens in space? Might sound crazy, but the fall of the Soviet Union did result in exactly this scenario for an astronaut that had to go through a harrowing survival situation for a very long time until things were resolved down on Earth.
> Orphaned citizens in space? Might sound crazy, but the fall of the Soviet Union did result in exactly this scenario for an astronaut that had to go through a harrowing survival situation for a very long time until things were resolved down on Earth.
In the grand scheme of things a handful of murderers going free or a ship of people stranded in space isn't the end of the world, and for almost everybody else they would be nothing more than a curiosity. These are hypotheticals that are easy to personify and therefore may seem to require urgent attention, but that's mostly illusory. (As evidenced by the fact that even when we use supposedly "real life" stories, we leave out many of the most important details; details that almost always admit of other possible endings easily reached.) The "plight" of the Mir cosmonaut paled in comparison to the plight of people down below, and in any event it's difficult to imagine a treaty having accounted for this kind of event--dissolution of a state. It may have been just as likely that a treaty would have bound the hands of signatories; signatories who might otherwise have permitted him to land--lawfully, unlawfully, or otherwise--when he truly neared the end of his rope.
At their best treaties improve the consistency and application of normative international law, and on occasion accelerate their maturation. But at their worst treaties become dumping grounds for wants rather than needs, ideals rather than practicalities; and thus are likely to injure consistency and fair application of the law in the long-term. And unlike domestic statutory laws, treaties can be very difficult to change. From a real politick perspective states are free to ignore them, but in doing so they injure the effectiveness of other treaties and the rule of law generally. (See how pharmaceutical companies have effectively locked the United States into a strong patent regime based on a complex system of multilateral and bilateral treaties.)
My only point is that these matters are not as urgent as often described and rarely without alternative remedies. Legal systems aren't usually so brittle and technical that they fall apart in the face of such seemingly novel events. And in any event, in the realm of international law and international relations avoiding the possibility of technical gaps a priori is not and should not be a high priority, and can have significant unintended consequences which are far more difficult to rectify than most other areas of the law. Letting experience and exigency be our guide might seem lazy, but it also helps keep the system accountable and grounded when there are very few mechanisms for achieving that.
When it comes to international relations, the point of tension almost always regards territorial jurisdiction. Exercise of territorial jurisdiction usually reflects an absolute and exclusive claim over resources, people (i.e. personal jurisdiction), and activities (i.e. subject-matter jurisdiction). But not always, and not necessarily. One way to cabin the effect of territorial jurisdiction when there exist or could exist overlapping claims of authority is to carefully qualify personal and subject-matter jurisdiction. (Remember, you need all three.) If you grant a court territorial jurisdiction but qualify personal and subject-matter jurisdiction to eliminate or minimize conflicting effective jurisdiction, then nobody will mistake your claim of territorial jurisdiction for a power grab.
The Slate article conspicuously doesn't mention that both the perpetrator and victim of the murder on T-3 were American nationals, perhaps because it would have simplified the problem and made the solution obvious to people without a legal background, even if they couldn't articulate it in legalese. From a theoretical perspective the fact that one of the parties, especially the perpetrator, was American basically resolves the whole thing. Nobody will care about your claim of territorial jurisdiction if you qualify personal jurisdiction to your own nationals. That's why the United States requiring and enforcing nationals living abroad to pay Federal income tax, even for foreign-sourced income, doesn't result in international incidents even though in such cases there's significant jurisdictional overlap--multiple sovereigns are laying claim to the same people and assets, but not in a threatening sense that nation-states would care about.
So the answer to T-3 was obvious. The only real problem was that the statutes and organic law granting jurisdiction at the time were too narrow on their face, and the courts were reticent to read into them jurisdiction, as American courts usually are (reticent). Predictably, and per Wikipedia, the consequence of T-3 was the passage of 18 U.S. Code § 7(7):
> The term "special maritime and territorial jurisdiction of the United States", as used in this title, includes: ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.
-- https://www.law.cornell.edu/uscode/text/18/7#7
Now, that still requires in any particular case answering the question of whether another state had jurisdiction at the time of some event, but that question (or at least that type of question) is unavoidable. You don't need a complex, comprehensive international treaty and framework to resolve and fix these problems. In fact, it's usually premature to that do that without actual experience of real-world incidents as there is no universal solution to or metric for balancing competing jurisdictional interests. (Just as in programming: the best solution to a functional problem often only makes itself known after you see and analyze real-world cases. Often by trying to solve problems anticipatorily you end up with unnecessary and burdensome complexity, plus an incomplete solution because of unforeseen cases and exceptions.) Anyhow, international treaties can only ever offer incremental improvements, if at all, by applying the same basic principles and technique in ever finer detail. Thus we have clause 6,
> (6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard.
Which basically applies to spaceships the rule that already existed regarding traditional ships in international maritime law. I can imagine the courts of some countries assuming such jurisdiction implicitly by analogy with or extension of [their interpretation of] maritime law, without requiring new statutes. Indeed, that's how international maritime law developed--organically from practical necessity, basic legal principles, and recognition of customary behavior, usually preceding formal codification, if any.
The basic problems here are not at all new, and the answers are not at all difficult from an abstract perspective, especially once you recognize that overlapping claims of authority are natural and unavoidable--it's only the consequences that ultimately matter. (Indeed, reconciling conflicting claims of right is fundamentally what any legal system is about.) The issues only get "thorny" on a very technical level. Journalists and academics often use slight of hand (e.g. not specifying nationality) to make issues appear as weighty dilemmas, otherwise nobody would pay them any attention. Plus, people like reading about "gotchas" in the law, as it reinforces their notion that the law is arbitrary and contrary to common sense.