With the development of automated vehicles, a great number of legal questions arise. These questions largely concern matters of liability and data protection, but also traffic laws. Many traffic laws across the globe are based on the notion of a human driving the vehicle, but with the rise of automation, the role of the human driver will slowly disappear. Our author takes a closer look.
An article by Nynke E Vellinga
Two international road traffic Conventions, namely the Geneva Convention on Road Traffic of 1949 and the Vienna Convention on Road Traffic of 1968, are the foundation of many national traffic laws. Countries signing either or both of these Conventions are obliged to bring their national traffic laws in conformity with (one of) these Conventions. Both Conventions entail rules on, among others, traffic rules. It is these traffic rules what pose a challenge in light of the development of automated vehicles. More specifically, the development of fully automated vehicles that can operate without human interference is currently not compatible with these traffic rules. That is because these traffic rules are based on the notion of driver: a human that decides on direction and speed by operating (some of) the controls of the vehicle. A fully automated vehicle does not have a driver in the sense of the Conventions, as there is not a human that decides on the speed and direction (not to be mistaken with the destination) of the vehicle by operating controls. There is no human deciding on whether to turn left or right at an intersection, whether to slow down when approaching a roundabout, or to stop for a pedestrian at a pedestrian crossing. A fully automated vehicle is therefore, within the meaning of the Geneva Convention and the Vienna Convention, driverless. How to go forward from here? How to accommodate these fully automated vehicles to the existing rules?
There are several options to revise the Geneva Convention and the Vienna Convention for a driverless future. One option is to take on an approach from maritime and aviation traffic rules, more specifically the International Regulations for Preventing Collisions at Sea of 1972 (COLREGS 1972) and Annex 2 of the Convention on International Civil Aviation (Chicago Convention). The traffic rules in both the COLREGS 1972 and Annex 2 of the Chicago Convention are addressed to either the vessel or the aircraft. This is different from the approach taken in the Geneva and Vienna Conventions on Road Traffic. In these Conventions, many traffic rules are directed at the driver. By taking the approach of the COLREGS 1972 and Annex 2 of the Chicago Convention and direct traffic rules at the vehicle instead of the driver, fully automated vehicles would be accommodated by the Geneva Convention and the Vienna Convention. The next step is, similarly to the COLREGS 1972 and Annex 2 of the Chicago Convention, to assign responsibility for the conduct of the (system of the) vehicle to a party. This responsibility could be assigned to, for example, the user of the fully automated vehicle, or the manufacturer of the vehicle. This approach, however, would require extensive amendments to the Geneva Convention and Vienna Convention as the relevant traffic rules should be revised and a new provision on the responsibility for the vehicle is needed.
An approach that does not require such extensive amendments is an approach from Dutch case law: the functioneel daderschap (freely translated: vicarious liability). This approach stems from a Dutch criminal law case before the Dutch Supreme Court (Hoge Raad 21 October 2003, ECLI:NL:HR:2003:AF7938) back in 2003. The Supreme Court decided in this case that a legal person could be regarded to be the criminal offender when the relevant conduct can reasonably be imputed to him. When this is reasonable depends on specific circumstances. However, if the act took place within the sphere of influence of the legal person, this act can, in principle, be regarded to be committed by the legal person. When this reasoning is applied to automated driving, it leads to the following: the (system of the) vehicle drives itself, for which the party with the most influence over the conduct of the (system of the) vehicle is responsible. This requires the removal of the definition of driver from the Geneva Convention and the Vienna Convention. That way, the (system of the) fully automated vehicle can be regarded as being the driver of the automated vehicle and should therefore behave in conformity with the traffic rules of the Conventions that are addressed to the driver. The responsibility for the conduct of the (system of the) vehicle lies with the party that has the most influence over that conduct. Depending on the circumstances, this could be the manufacturer of the vehicle, as he decides on the hardware and software of the vehicle, or perhaps the hacker of the vehicle that has made the vehicle controllable from a distance. The owner could also be responsible, for instance if the conduct is the consequence of the owner ignoring instructions to install a software update.
Both, the approach from maritime and aviation traffic rules and the functioneel daderschap approach, offer a solution for the driverless future. They accommodate mixed traffic, where vehicles of all different levels of automation share the public road. However, unlike the approach from maritime and aviation traffic law, the functioneel daderschap formula would not require extensive amendments to the Geneva Convention and the Vienna Convention. This makes the functioneel daderschap the more suitable approach for the near future.
See for a more in-depth study of these proposals and other solutions Nynke E. Vellinga (2019): Automated driving and its challenges to international traffic law: which way to go?, Law, Innovation and Technology, DOI: 10.1080/17579961.2019.1665798.