The interpretation of the term "territory," when it comes to determining its application to airspace, leaves little room for doubt in public international law. As early as 1944, Article 1 of the Convention on International Civil Aviation, known as the Chicago Convention, enshrined the fundamental principle that "« The Contracting States recognize that each State has complete and exclusive sovereignty over the airspace above its territory ».
This air sovereignty is inseparable from territorial sovereignty itself: the air above the land and territorial sea is an integral part of the national territory. International jurisprudence, particularly that of the International Court of Justice (Military and Paramilitary Activities in Nicaragua, ICJ, 27 June 1986, § 251; Continental Shelf of the Aegean Sea, ICJ, 19 December 1978, § 90), has unambiguously confirmed this.
From this observation stems a simple principle: the international obligations which apply to a State "on its territory" apply equally to its airspace.
Therefore, a State party to the Rome Statute cannot separate the ground from the air above it: its obligations to cooperate with the International Criminal Court (Articles 86 et seq.) naturally extend to its airspace.
The international regime for overflights
The Chicago Convention precisely organizes the regime of civil aircraft and strictly distinguishes them from state aircraft.
- Under Article 5, non-scheduled civil aircraft enjoy a right of overflight and technical stopover without prior authorization, subject to compliance with the regulations of the State overflown.
- Scheduled air services (commercial lines) are subject to Article 6, which prohibits their operation without special agreement or authorization.
- As for state aircraft – military, customs, police or assigned to a public mission – they are, in principle, outside the scope of the Convention. But Article 3(c) is explicit:« No state aircraft of a contracting state may overfly or land in the territory of another state without special authorization or otherwise than by special agreement. »In other words, except in cases of emergency or distress, prior authorization is the absolute rule.
France, like the other contracting states, rigorously applies this regime.
Foreign civil aircraft comply with bilateral air service agreements and authorizations from the Directorate General of Civil Aviation (DGAC), while any foreign state aircraft must obtain diplomatic authorization issued by the Ministry for Europe and Foreign Affairs, after consultation with the relevant ministries, including the Ministry of the Armed Forces.
Obligations arising from the Rome Statute
In this architecture, the obligation of cooperation of States Parties to the Rome Statute takes on its full meaning.
Article 86 establishes a general obligation to "cooperate fully with the Court," and Article 89 specifies the obligation to surrender wanted persons when they are on its territory. Interpreted in good faith, in accordance with Article 26 of the Vienna Convention on the Law of Treaties, these provisions require the State Party not to facilitate, directly or indirectly, the escape of a fugitive.
Therefore:
- For a regular civil aircraft, France, informed that it is transporting a wanted person, should refuse authorization for flight or transit.
- For a state aircraft, France has a discretionary power of authorization: granting overflight under such conditions would constitute a violation of its international commitments.
- In the event of an unauthorized overflight, France is entitled, under its Civil Aviation Code (art. L. 6142-3) and interception procedures (decree no. 94-844 of September 30, 1994), to force the aircraft to land.
This is not a theoretical question, but a practical obligation, arising from the principle of good faith and the "useful effect" of treaties (ICJ, Namibia, Advisory Opinion, 1971, § 95).
JURDI's approach and the CADA procedure
It is precisely to verify the conformity of French practices with these principles that the association JURDI – Jurists for Respect for International Law – requested, on the basis of the law of July 17, 1978 relating to freedom of access to administrative documents, the communication:
- Internal procedures governing the processing of requests for overflights by foreign state aircraft; ;
- Registers or lists of authorizations issued in the recent period, in order to identify any authorizations granted to state aircraft linked to countries implicated before the International Court of Justice for genocide or other international crimes.
The Commission for Access to Administrative Documents (CADA), by opinion of September 9, 2025, confirmed the communicable nature of such documents, subject to secrets protected by law.
This finding is important: it means that the processing and issuance of overflight authorizations for foreign state aircraft are indeed administrative acts, subject to the principles of transparency and legality.
Conclusion
Thus, the "territory" referred to in the Rome Statute indisputably includes airspace. Civil aircraft operate within it according to different regimes, but state aircraft never access it without prior authorization.
France, a State party to the Rome Statute, is therefore obliged to use this power of authorization to refuse any overflight that would facilitate the escape of fugitives wanted by the ICC.
The approach taken by JURDI, and now validated by the favorable opinion of the CADA, pursues a clear objective: to establish the traceability and conformity of French decisions authorizing overflights with France's higher international obligations, whether it be the Rome Statute, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) or recent decisions of the International Court of Justice (orders of January 26 and May 24, 2024 in the case of South Africa v. Israel; order of April 8, 2024 in the case of Nicaragua v. Germany).
The question of airspace here is therefore not only technical: it directly involves the international responsibility of the State.
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