Technology in the Driver’s Seat: Legal Obstacles and Regulatory Gaps in Road Traffic Law

Vienna Convention (1968).

Geneva Convention (1949), at 22–101.

Available at: https://​www.​unece.​org/​trans/​maps/​un-transport-agreements-and-conventions-08.​html. Accessed 30 June 2020.

Available at: https://​www.​unece.​org/​trans/​maps/​un-transport-agreements-and-conventions-07.​html. Accessed 30 June 2020.

Some countries, such as China, are party to neither of these Conventions.

Vienna Convention, Article 3; Geneva Convention, Article 6.

These discussions take place in UNECE Working Party ‘Global Forum for Road Traffic Safety’ (WP.1). The main function of WP.1 is keeping the Conventions up-to-date. WP.1 meets twice a year in Geneva, Switzerland. Reports and working documents are available at: https://​www.​unece.​org/​trans/​areas-of-work/​road-traffic-safety/​meetings-and-events/​global-forum-for-road-traffic-safety-wp1.​html. Accessed 30 June 2020.

Shladover (2018), p. 194.

SAE Standard J3016 (2018). The first version was published in 2014. It has now been updated twice, once in 2016 and again in 2018. See for the latest version: https://​www.​sae.​org/​standards/​content/​j3016_​201806/​. Accessed 30 June 2020.

Law Commission & Scottish Law Commission (2018), par. 2.6.

The automated driving system is the combination of hardware and software that enable the vehicle to perform the entire dynamic driving task, regardless of whether it is limited to a specific operational design domain (ODD). This term is used specifically to describe level 3, 4 or 5 systems. SAE Standard J3016 (2018), p. 3.

The Dynamic Driving Task (DDT) is defined as follows: “All of the real-time operational and tactical functions required to operate a vehicle in on-road traffic, excluding the strategic functions such as trip scheduling and selection of destinations and waypoints, and including without limitation: Lateral vehicle motion control via steering (operational); Longitudinal vehicle motion control via acceleration and deceleration (operational); Monitoring the driving environment via object and event detection, recognition, classification, and response preparation (operational and tactical); Object and event response execution (operational and tactical); Maneuver planning (tactical); and Enhancing conspicuity via lighting, signaling and gesturing, etc. (tactical).” SAE Standard J3016 (2018), p. 6.

The ODD is determined by the manufacturer and sets out the conditions in which the system or feature is designed to function. Conditions may relate to a type of road (such as a motorway); a place (such as a city); a speed (such as under 12 km per hour); or weather (such as “not in snow”). The ODD sets the limits of what the automated vehicle can (and, crucially, cannot) do. The UNECE Resolution on the deployment of highly and fully automated vehicles adopts a similar approach: “operational design domain”… refers to the environmental, geographic, time-of-day, traffic, infrastructure, weather and other conditions under which an automated driving system is specifically designed to function.(UNECE “Global Forum for Road Traffic Safety (WP.1) resolution on the deployment of highly and fully automated vehicles in road traffic” (2018), Report of the Global Forum for Road Traffic Safety on its seventy-seventh session, ECE/TRANS/WP.1/165 Annex 1, par. 3(c).

The SAE taxonomy defines a “minimal risk condition” as a condition to which the user or system may bring the vehicle “in order to reduce the risk of a crash when a given trip cannot or should not be completed”. It is furthermore stated that the characteristics of automated achievement of a minimal risk condition at levels 4 and 5 will vary according to the type and extent of the system failure, the ODD (if any) for the ADS feature in question, and the particular operating conditions when the system failure or ODD exit occurs. It may entail automatically bringing the vehicle to a stop within its current travel path, or it may entail a more extensive maneuver designed to remove the vehicle from an active lane of traffic and/or to automatically return the vehicle to a dispatching facility. SAE Standard J3016 (2018), p. 11.

If a triggering event arises in a highly automated driving system, the system may give the human user the option to take over the dynamic driving task. If this does not occur, the system is then able to achieve a “minimal risk condition” on its own.

SAE Standard J3016 (2018), par. 3.12, note 3.

Organisation for Economic Co-operation and Development, Automated and Autonomous Driving: Regulating Uncertainty (2015), p. 5.

Law Commission & Scottish Law Commission (2018), par. 2.14.

Law Commission & Scottish Law Commission (2018), Appendix 3, par. 3.3 ff.

Shladover (2018), p. 194.

Law Commission & Scottish Law Commission (2018), par. 3.96.

Available at: https://​www.​m14intelligence.​com/​car-makers-skipping-sae-level-3-automation/​. Accessed 30 June 2020.

Law Commission & Scottish Law Commission (2018), Appendix 3, par. 3.5.

SAE Standard J3016 (2018), pp. 1 and 18.

Smith (2014), p. 423.

As Smith explains with regard to Article 8 par. 1 of the Geneva Convention it can be assumed, on historical grounds, that the requirement for every vehicle to have a driver was primarily aimed at vehicles drawn by animals. This is because it is conceivable that these could also have been used without a driver. This does not apply in the case of motorised vehicles. Smith (2014), p. 428.

Vienna Convention, Article 1(v) reads: “Driver” means any person who drives a motor vehicle or other vehicle (including a cycle), or who guides cattle, singly or in herds, or flocks, or draught, pack or saddle animals on a road; (…). Art. 4 par. 1 Geneva Convention reads: “Driver” means any person who drives a vehicle, including cycles, or guides draught, pack or saddle animals or herds or flocks on a road, or who is in actual physical control of the same, (…).”.

Vellinga (2019), p. 263; Law Commission & Scottish Law Commission (2018), par. 2.53. Smith, however, points out that because the definition is nonexclusive, referring to “any” person rather than to “the” person. An automated vehicle might also have multiple simultaneous drivers, including a person who is physically or electronically positioned to provide real-time input to the vehicle, a person who turns on or dispatches the vehicle, or a person who initiates or customizes that automated operation. As a definitional matter, these persons might even be a legal person and not a human (natural person). Smith (2014), p. 434.

Smith (2014), p. 439.

This particularly refers to the so-called ECE-Regulations based on the so-called 1958 Agreement (Agreement concerning the Adoption of Uniform Technical Prescriptions for Wheeled Vehicles, Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles and the Conditions for Reciprocal Recognition of Approvals Granted on the Basis of these Prescriptions, of 20 March 1958). All European states with the exception of Ireland are parties to this agreement. Available at: https://​www.​unece.​org/​trans/​maps/​un-transport-agreements-andconventions-18.​htm. Accessed 30 June 2020.

See also the explanatory notes accompanying the amendment (ECE/TRAN S/WP.1/145, under 6): The driver’s obligation to monitor and control any kind of action taken by a vehicle system is addressed by the guiding principle underlying all road traffic rules. The systems are not designed to override decisions taken by sane, accountable drivers.

ECE/TRANS/WP.1/165, par. 15: The French delegate stated that the amendment appears necessary because the Conseil d’Etat had declared that vehicles with SAE Levels 4 and 5 on the French territory would not be in conformity with the country’s obligations under the Vienna Convention on Road Traffic. See also the Dutch ‘Conseil d’Etat’ (Raad van State): Tweede Kamer, vergaderjaar 2017–2018, 34 838, nr. 4.

Law Commission & Scottish Law Commission (2018), par. 2.60–2.67 (referring to the law of England and Wales and Scotland; Vellinga (2019), pp. 260–262 (referring to German and Dutch law).

ECE/TRANS/WP.1/2019/9, par. 3.

A new section on motor vehicles with a highly or fully automated driving function was inserted in the Federal Road Traffic Act (Straßenverkehrsgesetz; StVG).

Although these new rules do not refer to the automation levels as defined by the SAE, in essence, the term “high automation” in the German law is akin to SAE Level 3 (“conditional automation”), while the term “full automation” equals SAE Level 4 (“high automation”). Kessel and von Bodungen (2018), p. 228. The new rules allow the use of highly or fully automated vehicles if the automated driving function is used in accordance with its intended use (StVG, § 1a (1)). Highly or fully automated driving systems within the meaning of this Act need to meet the following requirements: the system (1) takes over the vehicle control (including both steering and acceleration/deceleration) when activated, (2) observes all traffic rules during phases of automation, (3) can be overridden or switched off by the driver at any time, (4) recognizes the need for the driver to retake manual control of the vehicle, (5) optically, acoustically, tactilely or by other means alerts the driver with an adequate time buffer to take over the driving functions, and (6) informs the driver that the automation system is being used contrary to the manufacturer’s system description. The manufacturer of highly or fully automated vehicles shall state in the system description that the vehicle meets the requirements set out in the first sentence.

StVG, § 1b (4): A person who activates a highly or fully automated driving function within the meaning of subsection (2) and uses such a function to control the vehicle within the framework of the use of these functions as intended, shall also be deemed to be a driver. By means of this provision, the German legislator also wanted to stress the importance of the presence of a driver, so that German law so far does not permit autonomous driving (where there may be no person at all to intervene in the driving process). See Kessel and Bodungen (2018), p. 229.

Vellinga (2019), p. 258.

See for example Chap. 7 of the consultation paper (Law Commission & Scottish Law Commission 2018) where this was done for English law.

Law Commission & Scottish Law Commission (2018), par. 3.4. Other activities, such as eating and drinking, may be tolerated, provided they do not cause the driver to drive carelessly or dangerously.

StVG, § 1b (1): While a vehicle is being controlled by highly or fully automated driving functions as described in Sect. 1a, the driver may divert his attention from other traffic and control of the vehicle; he must, however, remain sufficiently alert that he can comply with the obligation set out in subsection 2 at any time.

One of the requirements for highly or fully automated driving systems is that it alerts the driver with an adequate time buffer to take over the driving functions.

StVG, § 1b (2): 2. The driver shall be obliged to retake control of the vehicle without undue delay:

Kessel and Bodungen (2018), p. 231.

See for an overview Law Commission & Scottish Law Commission (2018), Appendix 3 (Human Factors).

It should be noted, however, that there is also a growing body of research that suggests that focus should shift from viewing secondary activities simply as distractions to a more active approach to drivers’ attention management. From this perspective, drivers should be encouraged to undertake tasks which are appropriately demanding on their attention—engaging enough to keep the driver alert, but not so engrossing as to make it difficult for a driver to resume the driving task if they are required to do so at short notice. controlled engagement in secondary activities may improve driver alertness and engagement, and enhance the driver’s ability to regain control if required. For example, secondary activities can help to ensure that the human does not drift into sleep. See Law Commission & Scottish Law Commission (2018), par. 3.86.

The Law Commission of England and Wales and the Scottish Law Commission are statutory independent bodies to keep the law under review and to recommend reform where it is needed. The Law Commissions are jointly conducting a three-year review to prepare driving laws for self-driving vehicles. In 2018 they published a preliminary consultation paper to examine options for regulating automated road vehicles. Available at: https://​www.​lawcom.​gov.​uk/​project/​automated-vehicles/​. Accessed 30 June 2020.

However, unlike the fallback-ready user the user in charge would not be required to take over driving in urgent circumstances.

This reflects aspects of the Resolution on the deployment of highly and fully automated vehicles, par. 5(d), which requires that if a vehicle user is required to exercise dynamic control, they should hold the necessary driving permit(s). UNECE “Global Forum for Road Traffic Safety (WP.1) resolution on the deployment of highly and fully automated vehicles in road traffic” (2018), Report of the Global Forum for Road Traffic Safety on its seventy-seventh session ECE/TRANS/WP.1/165 Annex 1.

Law Commission & Scottish Law Commission (2018), par. 3.34.

Issues of criminal and civil liability are not within the scope of the Vienna or Geneva Convention and are decided by national law.

Law Commission & Scottish Law Commission (2018), par. 3.39.

Vellinga points out that under Dutch criminal law an offence can not only be committed by the person that commits the conduct, but also by the legal person that has the power to dispose over the conduct. It is regarded the functioneel dader (freely translated: vicarious perpetrator). This approach from Dutch case law can be used as an example to treat the acts of the self-driving system of an automated vehicle as the acts of the manufacturer of that vehicle (theory of “functioneel daderschap”). She furthermore points out that this approach could fit within the terms of the Conventions if the definition of driver is deleted from them (Vienna Convention, Article 1 (v); Geneva Convention, Article 4 par. 1). The current definition does not leave room to treat the system as driver because the system is not a person. Vellinga (2019), pp. 274–276.

Law Commission & Scottish Law Commission (2018), par. 7.26–7.27.

In theory, if such a dispute cannot be settled between contracting parties, States can ultimately apply to the International Court of Justice for a decision pursuant to Article 52 of the Vienna Convention or Article 33 of the Geneva Convention. However, given ICJ’s slow speed, “cars might be flying before the court reaches a final decision.” See Smith (2014), p. 446.

It is also proposed to amend the Vienna Convention aiming at providing contracting parties freedom to set out rules and exemptions for automated vehicles in their domestic legislation (see for example ECE/TRANS/WP.1/2019/6). Providing such a freedom would give countries, that are of the opinion that certain levels of automated vehicles do not comply with the Convention (more specifically the requirement of Article. 8 (1) that all vehicles shall have a driver), the possibility to adapt their national legislation in order to admit the use of higher levels of automated vehicles and still being in line with the convention. The purpose of such an amendment would thus be to create a level playing field between the countries that have different opinions on what the Vienna Convention allows in relation to the obligation to have a driver in case of highly or fully automated vehicles. It would enable to deal with technologies that are currently in a nascent stage without worrying about conformity with the Convention. It would provide ‘creative’ freedom to gain initial experience with the (regulation of the) highest levels of automation. It would leave it up to domestic legislation to introduce to clarify existing notions as driver or to decide whether introduction of new concepts such a ‘user-in-charge’, or a new entity such as a ‘automated driving system entity’ is needed or not, and then define what requirements are placed on that person or entity, and/or on the automated driving systems. Such an amendment of the Convention is proposed as being time limited and could be removed once new binding legal instruments are available to support the introduction of uniform rules for deploying automated vehicles (see for example ECE/TRANS/WP.1/2019/6 and ECE/TRANS/WP.1/2019/8. An obvious and important disadvantage is of course that it will most likely complicate future harmonization. The current divergence in opinions rather illustrates the importance of reaching consensus on an international level.

The UK has tabled a discussion document for a package of article-by-article amendments to the 1968 Convention on Road Traffic to support the use of automated vehicles (ECE/TRANS/WP.1/2019/7). Areas where changes or supplements to the existing text are needed are identified and accompanying proposals made. However, as is stated in the document, it is merely meant to trigger discussion by illustrating the issues at stake and it is not intended to be a definitive list of changes or areas where change may be needed.