Faculty of law blogs / UNIVERSITY OF OXFORD

Apocalypse Now: climate change, eco-anxiety and Art.3 ECHR’s prohibition of degrading treatment


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14 Minutes
A climate change protest demonstration strike
Image taken from Unsplash


‘An emergency like no other’: the opening sentence of the complaint in the Duarte Agostinho v Portugal[1] proceedings before the European Court of Human Rights (‘ECtHR’) accurately summarises the threat posed by climate change. Duarte Agostinho, the first application to request the Court to rule specifically on the climate crisis,[2] is representative of a new focus on invoking existing legal frameworks – including both domestic regulations[3] and international instruments[4] - to facilitate government action, rooted in the United Nations Framework Convention on Climate Change’s difficulty in providing an effective new solution. The present discussion examines one aspect of this ‘turn to rights’: the so-called ‘climate anxiety’s’ ability to engage Art.3 of the European Convention on Human Rights (‘ECHR’), a question which has gained in relevance after the Court proprio motu asked the Duarte Agostinho applicants to comment on possible violations of Art.3 through climate inaction.

Climate anxiety (eco-anxiety) is generally defined as the feelings of distress, powerlessness, and fear relating to climate and ecological crises.[5] The following discussion will argue that – contrary to the traditionally restrictive interpretation of Art.3’s scope - eco-anxiety is, in principle, capable of engaging Art.3. Relying on arguments by Mavronicola[6] and Heri,[7] it will first be suggested that in assessing whether fear and anxiety constitute ill-treatment, the Court relies on a twin-trigger test establishing the minimum level of severity, examining the character of the wrong and the victim’s vulnerability. Second, it will be argued that even if climate inaction can be characterised as wrongful, diffuse, low-level suffering eco-anxiety without more is unlikely to amount to degrading treatment. For this reason, to engage Art.3, particularly intense suffering must be combined with a particular vulnerability. The argument will conclude by (non-exhaustively) pointing to the children, the elderly, and those in poor health as examples of particularly vulnerable applicants.

As a final introductory note, the present discussion will only address the question of the conceptual coherence of eco-anxiety’s capacity to trigger Art.3. Although unquestionably important, the problems of admissibility, jurisdiction, the scope, and prospective breach of obligations arising after the threshold is met, as well as the wider issue of the desirability of judicial enforcement of climate action, will not be elaborated on.

A. Fear, anxiety and Art.3

Article 3 of the ECHR states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons.[8] Art.3 can also give rise to positive obligations[9] to enact regulatory frameworks,[10] to protect specific individuals,[11] and to investigate allegations of ill-treatment.[12] However, for any of those duties to arise, it must first be established that Art.3 is engaged. The following section will set out the general principles of Art.3’s applicability and identify the central difficulty in finding eco-anxiety to constitute ill-treatment: the need for particularised suffering.

  1. General principles

The general test for Art.3’s applicability was established in the seminal Ireland v. UK case, with the Court holding that:-

‘… ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is … relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.’ [13]

This definition echoes the Court’s flexible interpretative approach, seeking to ensure ‘practical and effective’[14] rights protection, unbound by a strict doctrine of precedent and evolving with ‘developments and commonly accepted standards’.[15] Whereas the categories of ‘inhuman treatment’ and ‘torture’ are usually taken to imply a degree of intentionality,[16] ‘degrading treatment’, which ‘humiliates or debases an individual showing a lack of respect for, or diminishing, (…) human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’[17] is sometimes assimilated with the ‘least severe’ suffering meeting the threshold of Art.3.[18] Such ‘degrading treatment’ can be inflicted by omission,[19] with the state being liable even if the source of the treatment lies beyond its direct sphere of responsibility.[20]

  1. The difficulty with eco-anxiety

The question, therefore, is whether the fear and anguish – that is, eco-anxiety - related to states’ contributions to the climate crisis[21] amount to degrading treatment. The difficulty lies in the Court’s tendency to adjust the threshold in response to two considerations: the presence of a direct state wrong and the presence of specific vulnerability.[22]

The Court’s case-law shows that where mental suffering alone engages Art.3, it is often connected to specific instances of state action or inaction.[23] Anxiety stemming from forced disappearances of relatives[24] is a good example. For example, the Court in Varnava v. Turkey underlining that the violation was found in the authorities’ response ‘disclosing a flagrant, continuous and callous disregard’ of an obligation to search for the missing person,[25] showing ‘an attitude of official indifference’ (emphasis added) to the relatives’ suffering.[26] Contrastingly, where the suffering stems from a localised environmental risk affecting a certain population or a natural-onset illness,[27] the threshold is higher, with the Court finding Art.3 claims ‘manifestly ill-founded’ even where physical injury was present.[28]  Art.3 is thus most likely to be engaged where there is (i) direct state conduct, resulting in (ii) individualised suffering. Where one is missing, the other must be magnified, through either particularly wrongful conduct – in Bouyid v. Belgium,[29] the wrongfulness of abuse in police detention ‘made up’ for the low-level injury  – or particularly intense suffering, as seen in Esmukhabetov v. Russia,[30] where the indiscriminate bombing of a village caused the applicant, who witnessed his family’s death first-hand, to experience prolonged memory loss.[31] Eco-anxiety, stemming from systemic inaction contributing to a persisting, but low-level anxiety affecting wide populations, seems to entail neither particularly wrongful conduct nor particularly intense suffering. The following sections will seek to establish this essay’s central claim: that the unique role played by states vis-à-vis climate change, combined with particular vulnerabilities magnifying the suffering, suffice to make eco-anxiety capable of meeting the Art.3 threshold.

B. The character of the wrong

As regards the state conduct criterion, climate change response is characterised by significant state-individual asymmetry, stemming from the states’ greater capacity to combat the climate crisis. In this respect, Mavronicola draws a comparison[32] between Soering-type[33] ‘death row phenomenon’ cases, where the suffering of inmates awaiting death at an unknown time amounted to ill-treatment, and individuals exposed to extreme weather events: where the state fails to take action, they are powerless to prevent or prepare for the occurrence of unpredictable, deadly climate cataclysms. It is those very feelings of powerlessness in face of state indifference that cause eco-anxiety, with studies showing distress to be correlated with the perceived inadequacy of government response.[34] Further, uncertainty and lack of prospect of improvement are factors have been previously considered relevant in assessing the severity of treatment.[35] More generally, in M.S.S v. Belgium,[36] the Grand Chamber found that through the fault of the authorities (…) the applicant has found himself in a situation incompatible with Article 3’ (emphasis added). Although the suffering of the applicant in M.S.S, a homeless asylum seeker unable to provide for his essential needs, was doubtlessly more severe than eco-anxiety, M.S.S exemplifies the Court’s cautious willingness to characterise systemic inaction and indifference as wrongful. It is suggested that in light of the correlation between climate change and the mental and physical effects of climate-related cataclysms, climate inaction can in principle be considered to constitute similarly ‘wrongful’ conduct.

However, the difficulty remains. Unlike the individualised, intense suffering in M.S.S, ‘disappeared relative’ and ‘death row’ cases, eco-anxiety is diffused and experienced by millions. Although it is no answer that the number of people affected decreases the responsibility, such an extension of Art.3 would be unprecedented, stretching far beyond its core ‘torture paradigm’.[37] It could also be unjustified: the dissenting Judges in Bouyid v. Belgium considered the Court should ‘avoid trivialising findings of a violation’ of Art.3 in light of its absolute nature,[38] holding that ‘it is not for the Court to impose general rules of conduct’ on state authorities.[39] Taking account of this objection, the present argument relies on a trend in Art.3 case-law identified by Heri: the Court’s use of vulnerability reasoning to protect particularly badly-off applicants where a general finding would have large-scale consequences in terms of the breadth and generality of obligations imposed.[40]

C. Vulnerability

The final section will outline the way in which the vulnerability of applicants may suffice to make eco-anxiety reach the threshold of degrading treatment.

  1. Children

Forming the object of Mavronicola’s excellent analysis,[41] children are the most established category of vulnerable applicants, the historically first,[42] ‘paradigmatic’ example of vulnerability[43] recognised by the ECtHR, ‘inherently and constantly’ vulnerable[44] due to their dependence on others and susceptibility to trauma:[45] a given form of treatment may constitute ill-treatment of a child even when the threshold would not be met for an adult.[46] Further, evidence shows young people are particularly affected by eco-anxiety. In a recent study, 59% of respondents aged 16-25 were ‘very or extremely worried’ about climate change, with 45% reporting negative affects on their daily functioning.[47] Climate change and perceived governmental inaction were found to constitute unremitting, chronic stressors with long-lasting implications for children’s mental health.[48] Furthermore, despite being the most exposed to a lifetime of increasing environmental threats, children are largely excluded from formal decision-making, intensifying their vulnerability to state inaction.[49]

This unique compounding of vulnerability is acknowledged in the environmental law principle of intergenerational equity and rising numbers of children’s rights-based claims,[50] of which Duarte Agostinho proceedings are a typical example - the young Portuguese applicants point to ‘anxiety about the effects which climate change may have on them and their families’[51] and climate change ‘increasing significantly’ over their lifetimes as grounds of their Art.2 and Art.8 claims.[52] Similar arguments were previously recognised in Sacchi v. Argentina,[53] with the UN Committee on the Rights of the Child expressly acknowledging the climate anxiety phenomenon,[54] and stating that children are:-

‘particularly affected by climate change, both in terms of the manner in which they experience its effects and the potential (…) impact on them throughout their lifetimes’.

In light of the general vulnerability of children to trauma, compounded by the specific vulnerability to impacts of climate change against the context of knowing state inaction, it is therefore submitted that children’s experience of eco-anxiety is the factual scenario most likely to engage Art.3, both overall and compared to other claimants.

  1. Senior citizens and those in poor health

Two further groups with strong claims to the ECHR’s protection are elderly citizens and those with health conditions aggravated by climate change. As a matter of law, in a range of Art.3 cases concerning elderly claimants, the Court considered that advanced age, frailty, and poor state of health to be a source of vulnerability lowering the threshold of ill-treatment.[55] Moreover, the effects of climate change are recognised to disproportionately affect the health and well-being of the elderly than those in good health. In this regard, the United Nations High Commissioner for Human Rights report[56] indicates that adults aged 65 and older are ‘the most likely to die from heat exposure or during heatwaves, in extreme cold weather or winter storms, and in hurricanes and other natural hazards’.[57] As also noted by the High Commissioner, climate change can disproportionately affect older persons’ mental health, particularly as some older persons may be reluctant to seek mental health care.[58]

Elderly adults’ vulnerability is compounded by the risks of ageism, poverty, mobility difficulties, and social isolation,[59] exposing them to greater risk of injury or death, during climate-related emergencies.[60] The same reasoning also applies to non-elderly suffering from health conditions and disabilities. It follows that whereas the children’s vulnerability as relates to eco-anxiety lies in their cognisance of climate change in the decades to come, for the elderly and the disabled, the cause of eco-anxiety is much more immediate: should a climate-related disaster strike, they are less likely to survive.

The vulnerability of seniors has already been brought to the ECtHR’s attention: in Klimasenniorinen v. Switzerland[61] proceedings, a group of elderly Swiss women allege that by virtue of their age and gender, they are at a greater risk of ‘premature loss of life and severe impairment of life’ – and hence Art.2 and Art.8 violations - than the general population.[62] Interestingly, in Klimaseniorinnen Schweiz’s own words, the focus on senior citizens was a calculated choice, intended to ‘enhanc[e the] lawsuit’s chances of success which is ultimately good for everyone’[63] – proving that strategic reliance on the applicants’ vulnerability to facilitate the finding of the ECHR protections being engaged in respect of general climate policy already happens. Further, although the claim in Klimasenniorinen did not expressly invoke Art.3, the applicants did argue the impacts of climate change caused an ‘increase [in] loneliness, sadness and anxiety’,[64] showing that the factual circumstances grounding a possible eco-anxiety claim are present.

Should such a claim be launched, in a manner reminiscent of the ‘death row’ cases, an intense fear of death during an unpredictable cataclysm may meet the threshold of Art.3, particularly so as Art.3 and Art.8 operate on the same continuum:[65] should Art.8 violations be found in Duarte Agostinho and Klimasenniorinen, it is possible that in a case focused solely on particularly intense eco-anxiety, Art.3 threshold would also be met. The same principle applies to other (possibly intersecting) vulnerabilities: Mavronicola[66] identifies indigenous people and women as examples of disproportionately affected groups, with a further axis of vulnerability relating to residence in particularly vulnerable countries. However, this category is of a limited relevance in the ECHR context, as the COE Member States are amongst the most climate-resilient.[67]


The feelings of distress associated with the impacts of climate change are, in principle, capable of triggering the protection of Art.3. This is so as (if proven before the ECtHR) the systemic inaction of states in face of the climate crisis can be considered to be wrongful, with the presence of particular vulnerabilities ‘particularising’ the suffering. Whether eco-anxiety will amount to ill-treatment triggering Art.3 on the above analysis will, however, depend on the particular facts of the case – with the highest odds of success found in respect of applicants possessing many intersecting vulnerabilities (for example, a child climate refugee in poor health), experiencing unusually severe eco-anxiety.

Nevertheless, this argument’s importance should not be overstated. Even if the relinquishment of jurisdiction in Duarte Agostinho,[68] Klimaseniorinnen[69] and Carême v. France[70] to the Grand Chamber indicate the ECtHR’s willingness to examine climate-related claims, finding that Art.3 is engaged would only constitute the first step in holding governments liable: defining the applicable duties, proving they were breached on evidence and more generally, the very legitimacy of holding the states responsible for such breach are just some hurdles that climate litigants will have to clear before succeeding. The defendant governments remain cognisant of those difficulties: the Swiss government’s response to Klimasenniorinen specifically invokes the risk of ‘legalisation’ of climate contestation circumventing democratic debate, arguing the ECtHR itself is not a designated environmental court either as regards its jurisdictional scope or technical expertise.[71] For this reason, although particular impacts of climate change can be conceived of as interferences with the Convention rights, heed should be paid to Pedersen’s warning that ‘just because there are good reasons to explain the ECtHR being called upon to adjudicate on climate change risks, it does not follow that the Court is necessarily the best, let alone a useful, place to present climate change claims’.[72]



[1] Duarte Agostinho v Portugal and 32 Other States, App. no. 39371/20, Application, Statement of Facts at para.1.

[2] Duarte Agostinho v Portugal, Application para. 10-13, Annex para. 29.

[3] See e.g. the claim launched by ClientEarth, alleging the Board of Directors of Shell breached the due diligence duties under sections 172 and 174 of the UK Companies Act 2006 through failing to prepare the company for the net zero transition: ‘ClientEarth starts legal action against Shell’s Board over mismanagement of climate risk’ (ClientEarth, 15 March 2022), <https://www.clientearth.org/latest/press-office/press/clientearth-starts-legal-action-against-shell-s-board-over-mismanagement-of-climate-risk/>, Accessed 5 December 2022.

[4] See e.g. Advisory Opinion OC-23/17 of November 15, 2017 Requested by the Republic of Colombia: The Environment and Human Rights (IACrtHR 15 November 2017).

[5] Hickman and Marks et.al. ‘Climate anxiety in children and young people and their beliefs about government responses to climate change: a global survey’ [2021] Lancet Planet Health 2021; 5: e863-73, p.863

[6] Mavronicola, N, ‘The Future is a Foreign Country : Understanding State (In)action on Climate Change as Ill-treatment’ (Strasbourg Observers, 19 October 2021) <https://strasbourgobservers.com/2021/10/19/the-future-is-a-foreign-country-understanding-state-inaction-on-climate-change-as-ill-treatment/>, Accessed 13 May 2022.

[7] Heri C, ‘The ECtHR’s Pending Climate Change Case: What’s Ill-Treatment Got To Do With It?’ (EJIL :Talk !, 22 December 2020) < https://www.ejiltalk.org/the-ecthrs-pending-climate-change-case-whats-ill-treatment-got-to-do-with-it/>, Accessed 17 May 2022.

[8] Hristozov and Others v. Bulgaria, App. nos. 47039/11 358/12, (ECHR 13 November 2012) para. 111.

[9] X and Others v. Bulgaria, App. No. 22457/16 (ECHR 02 February 2021) para. 178.

[10] See e.g. M.C. v. Bulgaria App. No. 39272/98 (ECHR 04 December 2003) para. 150.

[11] See e.g. Volodina v. Russia App. No. 41261/17 (ECHR 09 July 2019) para. 86.

[12] See e.g. El-Masri v. ‘the Former Yugoslav Republic of Macedonia’ App. No. 39630/09 (ECHR 13 December 2012) para. 182.

[13] Ireland v. UK App.no.5310/71 (ECHR 18 January 1978), para. 162.

[14] Airey v. Ireland App.no.6289/73 (ECHR 6 February 1979), para. 24.

[15] Tyrer v. UK App.no.5856/72 (ECHR 25 April 1978) para. 31.

[16] Arai-Yokoi Y, ‘Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3 ECHR’ [2003] 21 Netherlands Quarterly of Human Rights 385, p.389.

[17] Pretty v. UK App.no.2346/02 (29 April 2002) para. 52.

[18] E.g. by Arai-Yokoi (n 16), p.420-21.

[19] E.g. A. v. UK ECHR 1998-VI 2699 paras. 22-3.

[20] Savran v. Denmark App.no.57467/15 (ECHR 7 December 2021), para. 123.

[21] ‘Contributions’ referring to both actions aggravating the climate crisis’ effects or omitting to mitigate them.

[22] Mavronicola N, Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart 2021) p.91; 97-100.

[23] See e.g. the threat of being subjected to physical torture made during police interrogation in Gäfgen v. Germany, App. No. 22978/05 (ECHR 01 June 2010), para. 108; the emphasis on the destruction of the applicants’ homes and possessions having been carried out in a premediated manner with the view of causing the applicants mental suffering in Selçuk and Asker v. Turkey App. No. 23184/94, 23185/94 (ECHR 24 April 1998), paras. 77-78.

[24] E.g. Cyprus v Turkey (2002) 35 EHRR 30, para. 157.

[25] Varnava and Other v. Turkey App. nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90,

16071/90, 16072/90 and 16073/90) (ECHR 18 September 2009) para. 200.

[26] Ibid. para. 202.

[27] Hristozov v. Bulgaria App. no. 47039/11 and 358/12 (ECHR 13 November 2012).

[28] Brincat v. Malta, App.no. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11 (ECHR 24 July 2014), para. 131.

[29] Bouyid v. Belgium App.no. 23380/09 (ECHR 28 September 2015).

[30] Esmukhabetov v. Russia App.no. 23445/03 (ECHR 29 March 2011).

[31] Ibid, para. 190.

[32] Mavronicola, ‘The Future is a Foreign Country’ (n 6).

[33] Soering v. UK, App.no.14038/88 (ECHR 07 July 1989).

[34] Hickman and Marks et.al. (n 5), p.866.

[35] Clasens v. Belgium App.no.26564/16 (ECHR 28 May 2019), para. 36.

[36] M.S.S. v. Belgium App.no.30969/09 (ECHR 21 January 2011) paras. 263-4.

[37] See Ireland v. UK (above), Aksoy v. Turkey App. no. 21987/93 (ECHR 18 December 1996), Gäfgen v Germany App. no. 22978/05 (ECHR 01 June 2010).

[38] Bouyid v. Belgium App.no.23380/09, Joint Partly Dissenting Opinion of Judges De Gaetano, Lemmens and Mahoney, para. 7.

[39] Ibid, para. 6.

[40] Heri C, ‘Responsive Human Rights: Vulnerability, Ill-treatment and the ECtHR’ (Hart 2021), p.104.

[41] Ibid, p.104.

[42] Timmer A, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in Fineman & Grear (eds.), ‘Vulnerability: Reflections on a New Ethical Foundation for Law and Politics’ (Ashgate 2014), p.165.

[43] Heri, Responsive Human Rights (n 40) p.40.

[44] Timmer (n 42), p.152.

[45] Heri, Responsive Human Rights (n 40), p.41.

[46] Heri, Responsive Human Rights (n 40), p.41; see e.g. see A. v. the United Kingdom, 23 September 1998, para. 22, Reports of Judgments and Decisions 1998‑VI; M.C. v. Bulgaria, cited above, para. 150, X and Others v. Bulgaria.

[47] Hickman and Marks et.al. (n 5), p.863.

[48] Ibid, p.864.

[49] Parker L, Mestre J, Jodoin S and Wewerinke-Singh M, ‘When the Kids Put Climate Change on Trial Youth-Focused Rights-Based Climate Litigation around the World’ [2021] JHRE 13(1), p.2.

[50] Ibid, p.3.

[51] Duarte Agostinho application, para. 22.

[52] Ibid., para. 21.

[53] Chiara Sacchi v. Argentina Communication 104/2019 (CRC 22 September 2021).

[54] Ibid. para. 10.13.

[55] E.g. Stoyan Mitev v. Bulgaria App.no.60922/00, (ECHR 7 January 2010), para. 73; Irina Smirnova v. Ukraine App.no.1870/05 (ECHR 13 October 2016) para. 9-18.

[56] OHCHR, ‘Analytical study on the promotion and protection of the rights of older persons in the context of climate change’ A/HRC/47/46 (30 April 2021), p.3-4.

[57] Ibid. para. 9.

[58] Ibid. para. 12.

[59] Ibid. para. 8.

[60] Ibid. para. 11.

[61] Communicated Case, Verein KlimaSeniorinnen Schweiz v. Switzerland  App.no. 53600/20 (ECHR 17 March 2021).

[62] Verein KlimaSeniorinnen Schweiz v. Switzerland App.no. 53600/20, Application, Statement of Facts, para. 3.

[63] ‘English summary of our climate case’, Klimasenniorinen Schweiz 2022, <https://www.klimaseniorinnen.ch/ english/>, Accessed 5 December 2022.

[64] KlimaSeniorinnen Application (n 62), Statement of Facts, para. 4.

[65] Wainwright v. UK App.no.12350/04 (ECHR 26 September 2006) para. 43.

[66] Mavronicola, N. ‘The Future is a Foreign Country: State (In)Action on Climate Change and the Right against Torture and Ill-Treatment’ Europe of Rights and Liberties/Europe des droits & Libertés, (November 2022) p.215.

[67] Data of Notre Dame Global Adaptation Initiative ND-GAIN Country Index Rankings, <https://gain.nd.edu/our-work/country-index/rankings>, Accessed 5 December 2022.

[68] ECtHR Press Release of 30 June 2022, ‘Grand Chamber to examine case concerning global warming’, <https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7374717-10079435&filename=Relinquishment%20in%20favour%20of%20the%20Grand%20Chamber%20of%20the%20case%20Duarte%20Agostinho%20and%20Others%20v.%20Portugal%20and%20Others.pdf>, Accessed 5 December 2022.

[69] ECtHR Press Release of 29 April 2022, ‘Grand Chamber to examine case concerning complaint by association that climate change is having an impact on their living conditions and health’, <https://www.klimaseniorinnen.ch/wp-content/uploads/2022/05/Relinquishment-in-favor-of-the-Grand-Chamber-of-the-case-Verein-KlimaSeniorinnen-Schweiz-and-Others-v.-Switzerland.pdf>, Accessed 5 December 2022.

[70] Carême v. France App. no. 7189/21, relinquished in favour of the Grand Chamber on 31 May 2022.

[71] Comments of the Swiss Government on admissibility and the merits, Application no. 53600/20 Verein KlimaSeniorinnen Schweiz et al. v. Switzerland, case number: 311.6-2797/6/1, para. 3-5. <https://www.greenpeace.ch/static/planet4-switzerland-stateless/2021/08/30b1c8c0-stellungnahme-schweiz-en.pdf>, Accessed 5 December 2022.

[72] Pedersen OW, ‘Any Role for the ECHR When it Comes to Climate Change?’ European Convention on Human Rights Law Review, 2021, p.2.