Right for the wrong reasons: Silih v Slovenia and jurisdiction rations temporise in the European Court of Human Rights

Treaties as a rule do not have retroactive effect. This has lead some courts to believe that cases involving facts occurring before the entry into effect of a treaty must fall outside the jurisdiction ratione temporis of the court in issue. When jurisdiction derives from a treaty, the potential retroactivity of the court’s jurisdiction is, however, distinct from the retroactivity of the obligations arising out of the treaty itself. The PCIJ settled this important question already in its 1939 judgment in Electricity Company of Sofia. The European Court of Human Rights for a long time took a more restrictive approach. It was only in its 2009 judgment Šilih that the European Court caught up with general international law. Nowhere, however, does the European Court say that it wants to diverge from the international jurisprudence; the divergence seems to be caused by a failure to understand the line of authority starting with Electricity Company of Sofia. The European Court made its leap averring that the only basis on which it could abandon its restrictive approach was through evolutionary interpretation. Though the material result in Šilih was right it was so for the wrong reasons. Had the European Court instead taken seriously the international jurisprudence then this manoeuvre, which has lead in its turn to criticism from national courts, would have been obviated.