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Autonomous Vehicles and the Human ‘Author’ in the Territorial Tort Exception to State Immunity

By Sajan Poovayya and Simone Avinash Vaidya
Published on 29 September 2026

 

1. Introduction

In June 2026, the United Nations Economic Commission for Europe (UNECE) adopted a new regulatory framework, forming the seminal global regulation allowing fully autonomous vehicles. This followed the release of the Chinese national standard, GB/T 47025-2026, for automated driving simulation tests earlier this year. These developments reflect major legal advances with law and policy finally catching up with technology, and with ‘drivers’ no longer being exclusively human. However, not all laws have kept the same pace, exposing disparities within other areas of international law. This is especially true in the context of the law of jurisdictional immunities, entailing that States are immune from the jurisdiction of the courts of another State. The issues emerge prominently before domestic courts, making it an issue of immense practical importance for academicians, policymakers and practitioners alike.  

The law on international immunities has long been characterised as being in flux, evolving alongside changes in the nature and functions of the State. The law on State immunity itself provides a prominent illustration of the evolutionary character of international law. Its development has been marked by a departure from the classical doctrine of absolute immunity towards a restrictive approach, with unconditional immunity being difficult to sustain and rationalise, considering the expanding commercial and private activities of States. The continuing evolution of the doctrine remains visible today, with domestic courts still examining the precise boundaries of its recognised exceptions. 

One such exception is the territorial tort, which permits exercise of jurisdiction over claims arising from death, personal injury or damage to tangible property caused by a foreign State within the territory of the forum. This emerged primarily to address traffic incidents caused by foreign States in the territory of another State. Thus, it is ironic that it is this very exception that contains an assumption which is increasingly unsettled by technological development of autonomous vehicles. Some formulations of the territorial tort require that the ‘author’ of the impugned act or omission must have been physically present in the forum State when the conduct occurred. Autonomous vehicles disrupt this assumption, with driverless vehicles creating complications in fulfilling the presence requirement. Sovereign immunity challenges have already emerged in the cyberspace context of spyware in the United States and the United Kingdom. While a sovereign immunity issue concerning autonomous vehicles is yet to be decided by a court, it nonetheless warrants a closer look, with vehicular autonomous capabilities becoming more common by the year. 

This blog examines the status of autonomous vehicles and torts committed through them in the context of state immunities. The subsequent section analyses the history of the territorial tort exception and pinpoints the incompatibility between the presence requirement and driverless vehicles. Next, the authors argue in favour of an evolutionary interpretation of international law in order to encompass autonomous instrumentalities within the exception. The authors conclude by articulating the various legal standards that ought to inform an assessment of ‘presence’.  

2. History, Scope and Incompatibility 

The territorial tort exception’s status as custom remains contested. While it is reflected in domestic legislation, case law and international instruments, there is no consensus regarding its precise scope, particularly in relation to sovereign acts of States, with the International Court of Justice (ICJ) also not resolving this question of law in Jurisdictional Immunities of the State. Regardless, ascertaining the status of the territorial tort is beyond the scope of this blog, with the present analysis adopting the formulations contained in Article 11 of the European Convention on State Immunity (ECSI), Article 12 of the UN Convention on Jurisdictional Immunities of States and their Properties (UNCJISP) and Section 1605(a)(5) of the United States Foreign Sovereign Immunities Act. Thus, this blog proceeds with analysing the territorial tort exception as a rule of treaty law under Article 38(1)(a) of the ICJ Statute. 

Article 32 of the Vienna Convention on the Law of Treaties outlines that the preparatory works of the treaty constitute supplementary means of interpretation. The commentary to Article 12 of the UNCJISP provides clarity on the presence requirement of the territorial tort rule, outlining that it had been inserted to exclude from the application of this article cases of transboundary injuries, such as the ‘export of explosives, fireworks or dangerous substances which could explode or cause damage through negligence, inadvertence or accident’. It highlights that the article is primarily concerned with accidents ‘occurring routinely within the territory of the State of the forum’.  

 Existing literature has identified a growing incompatibility between this requirement and harm caused by technology, as the ‘author’ is construed to refer to a human. Doe v. Federal Democratic Republic of Ethiopia is a prominent example, wherein the presence requirement was not fulfilled as the ‘author’ of the tortious surveillance technology was not present in the territory of the forum State. The risks of less benign cyber incidents such as drone attacks have been outlined by scholars of international law. Concerns pertaining to cyber-torts routed through proxy States have also been flagged, as it essentially creates a loophole for the application of the territorial tort exception.  

Autonomous vehicles occupy a precarious position in this context- while they squarely fall within the ambit of Article 12 of the UNCJISP due to its traffic-related orientation, the absence of a driver complicates the presence requirement. The presence requirement innovated under Article 11 of the ECSI clarifies such application in the specific scenario of traffic incidents. Building on an example of a State-owned vehicle being involved in a traffic incident, it delineates in no uncertain terms that the State may be sued provided the driver of the vehicle is present 

3. The Case for Evolutionary Interpretation 

In Compania Naviera Vascongado v. Steamship Cristina, Lord Maugham of the English House of Lords expressly recognised the absurdity of applying absolute state immunity in the instance of state-owned vessels engaged in commercial activities. Similarly, the rigid and textual application of a presence requirement with respect to autonomous vehicles would produce an absurd result. This is primarily due to the very genesis of the territorial tort exception, which has its roots in traffic-related violations. Excluding a class of emerging vehicles from the application of Article 12 would be counter-productive, allowing States’ tortious actions to slip through the sieve of accountability due to the failure to close this widening gap. 

Moreover, the emergence of new technologies and other scientific advancements forms a core tenet of evolutionary interpretation theory. Several World Trade Organisation Panels have taken new technological developments into account while adjudicating disputes related to intellectual property rights. In this context, it is necessary to trace the evolution of autonomous vehicles along with the development and ultimate adoption of the UNCJISP, which was concluded in 2004. In 1995, a semi-autonomous van drove 2,800 miles cross-country, and the world’s first commercial driverless vehicle was operational in 1999. However, legal regulation only caught up in 2016, with amendments to the Vienna Convention on Road Traffic, authorising automated driving systems. Therefore, the presence requirement must align with technological advancements and other legal developments that have taken place two decades since the signing of the UNCJISP. 

Another concern is of immunity precluding access to judicial remedy altogether. The right to access to justice enshrined under the International Covenant on Civil and Political Rights is strained when immunity is granted where the forum State is also the place of injury, evidence and the claimant’s connection to the dispute. Proceedings in another State may be practically inaccessible or unduly burdensome for the claimant, who is left with no meaningful remedy. 

4. Articulating a Functional Standard for Presence and Attribution

Any legal standard developed for autonomous vehicles must first account for the nature of the technology itself. These vehicles operate at varying degrees of autonomy, with the recently proposed UNECE Regulatory Framework recognising that driving consists of three categories of functions. Strategic functions concern broader journey-level decisions, such as selecting a decision or route; tactical functions pertain to manoeuvring decisions such as overtaking or responding to surrounding traffic; and operational functions concern the immediate execution of the driving task, including steering, braking and acceleration. These distinctions are significant as responsibility for these functions progressively shifts from the human driver to the automated system. These degrees of automation are also reflected in the form of a six-level pyramid, ranging from the lowest level of machine control to full automation. Accordingly, the importance of locating a human ‘author’ progressively diminishes as one progresses from Level 0 to Level 5.  

These principles can simultaneously operate as the governing framework for another key and interlinked element of the territorial tort exception- attributability. When the analysis centres around the relationship between the human author and autonomous instrumentality through a functional assessment, it also necessarily yields conclusions on whether one can be severed from the other in terms of causation of the particular conduct. The artificial separation of the remotely situated human author is likely to be impractical in some instances, where the author and instrumentality are functionally indivisible, as the autonomous vehicle constitutes the means through which the attributable conduct of the State is manifested within the territory of the forum. There is tremendous scope for further research in this regard, with William Hubbard’s work shedding light on the precise manner of determining the ‘driver’ in order to determine the attributability and therefore presence. An evolutionary interpretation recognising autonomous vehicles as capable of fulfilling the elements of the territorial tort exception would preserve, rather than dilute, its underlying rationale. 

  • Sajan Poovayya is a Senior Advocate at the Supreme Court of India
  • Simone Avinash Vaidya is a 4th Year student at MNLU Mumbai