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There are a number of cases which tried to apply Article 8, but only Lopez Ostra v Spain and Guerra and Others v Italy where the applicant has succeeded. The limitation of Article 8 is clear. First, the courts have to balance the interests of the individual and the community as a whole, and that there was a certain “margin of appreciation” for the state. The court has tended to grant States a considerable amount of discretion in balancing the competing interests. Second, the scope of it is limited. It is only interference with the quality of home life, interference with wider lifestyle has not generally been recognized. Third, Article 8 is centred on interference with certain types of human amenity. “Whilst people may be distressed by degradation of the natural environment, effects on other people or on flora, fauna or important natural features, such distress is not within the ambit of Article 8” .
B. Article 2 (the right to life)
Article 2 requires a State to take steps to safeguard life which are appropriate to the general situation. In practice, both the Commission and the Court have appeared reluctant to second guess the type of measures which may be required in the area of environmental safety, although there have been some suggestions that the approach should evolve towards on which is more receptive to the threats to life posed by environmental hazards.
In L, M and R v. Switzerland, the applicants complained that the transportation of nuclear waste, specifically the threat of a transport accident, threatened their right to life. The Commission declared that it was satisfied that the Swiss authorities had set up sufficiently precautionary measures to comply with their obligations under Article 2 and were not required to provide additional individual protection for those living in the vicinity of areas where transport was conducted.
In Guerra, where the Court had found “a violation of Article 8 in relation to the failure to provide essential information about risks, it was held that it was unnecessary to consider the claim in relation to Article 2” . This is perhaps an indication of the reluctance of the Court to consider Article 2 in the environmental context. By contrast, in their dissenting judgments, Judges Walsh and Jambrek held that Article 2 was relevant. In the words of Judge Jambrek “ it may…be time for the Court’s case law on Article 2…to start evolving, to develop the respective implied rights, articulate situations of real and serious risk to life, or different aspects of the right of life.”
C. Article 1 of Protocol 1(the right to peaceful enjoyment of possessions)
Article 1 of Protocol 1 guarantees the right to peaceful enjoyment of possessions and outlines circumstances when interference with the right may be justified, as for example in the public interest and subject to conditions provided for by law.
The Commission has considered that every kind of negative effect caused by environmental nuisances could indirectly amount to interference with the right to peaceful possession of property. In Rayner, the Court accepted that noise could affect the value of the property and therefore amount to a partial taking of the property. However, on the evidence this had not occurred.
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