At the end of 2009, the European Court of Human Rights ruled that Bosnia’s bar on minorities standing for parliament and the Presidency infringed the human rights of Bosnian Jews, Roma and other minorities who do not identify as one of the three constituent ‘national groups’ protected by the constitution—Bosniaks (Bosnian Muslims), Bosnian Serbs and Bosnian Croats. But even if Bosnia amends its constitution in accordance with the ruling, the broader problem of compulsory religious identification still remains to be addressed.

The ECHR verdict came after a lengthy campaign by Jacob Finci, a Bosnian Jew currently serving as Bosnia’s Ambassador to Switzerland. While the ruling against the implicit anti-Semitism of the Bosnian constitution can only be a good thing, it also exposes the corrosive effects of consociational politics in the country, which forces Bosnia to function as a kind of ethnopolis. Bosnia’s current constitution came out of one part of the 1995 Dayton Peace Accords. However, several attempts at constitutional reform later, Bosnia remains the country that has had a peace-treaty as a constitution for the longest period of time. As each of the three ‘national groups’ has the potential to be a minority, a multi-ethnic government representing the two entities (the Federation of Bosnia and Herzegovina and the Republika Srpska) was seen as vital to the country’s stability. That Dayton’s provisions were necessary to bring an end to the war is both true and, at the same time, now part of an unhelpful rhetoric that Dayton’s imposed structure is still needed for Bosnia and Herzegovina to survive as a unified country.

As political parties who campaign on ethno-religious lines—privileged by the political system—have won the majority of seats in all post-1995 elections, even individuals who wish to dis-identify face a kind of prisoner’s dilemma based on whether others will vote on ethno-religious lines. Florian Beiber has argued that the country’s current deadlock is a political, not constitutional problem, and to rush through further constitutional changes would likely do more damage. While this is true for all the reasons he states, in the meantime it remains the case that Bosnia and Herzegovina is frozen in a kind of purgatory of a living peace-accord.

Perhaps the most corrosive effect of post-Dayton compulsory identification is not on the political institutions themselves, but on public space and independent civil society. To identify on official records as ‘ostali’ (literally meaning ‘other’, which includes both minority religious identifications such as Jewish, and those who do not wish to publicly identify on the lines of the three national groups) immediately leads to problems in employment, particularly in public institutions. As ‘ostali’ includes those who identify on official records as being ‘Bosnian’, some even argue that the current system actually penalises those whose main allegiance is to the state they are trying to hold together. And this privileging of rigid religious identification extends to the literal public space: in Sarajevo, for instance, almost all new buildings are either luxurious shopping malls—curious given that Bosnia’s unemployment is estimated to be as high as 40%—or well-funded churches and mosques.

Calls for secular public space are often dismissed by opponents as regressive Titoism, or a desire to suppress the religious. But political philosopher Asim Mujkic convincingly reasons that it’s misplaced to dismiss calls for non-sectarian public identity as a kind of “Yugo-nostalgia”: the crucial difference being is that under Communism there was no division between public and private space, so secular public space was a meaningless concept, and the state repressed religion in the private sphere. Like the unhelpful binary often generated in Middle Eastern discourse between elite, artificial pan-Arabism and a somehow ‘authentic’ political Islam, the fact that Tito’s Yugoslavia was based on a constructed and ultimately unsustainable identity doesn’t prove that an ethnopolis is the natural solution, any more than pan-Arabism’s artificiality proves the ‘authentic’ nature of post-Khomeini political Islam in the Middle East. To argue so gets uncomfortably close to unhelpful and dangerous essentialisms; that ethnic conflict in the Balkans is somehow inevitable, that it is just what people do there.

The current stalemate also raises serious questions about democracy, both in terms of the continued presence of the Office of the High Representative, and the fact that under the current system individual citizens are treated as little more than units of constituent blocks of their religious group. This is democratic deficit is likely to worsen if the proposal for ‘zippered lists’ passes into law, whereby voters would only be able to vote for political parties rather than individual candidates, a proposal which Bosnian human rights groups have already denounced as undemocratic.

Reform of the constitution is central to Bosnia's road to EU accession and finally closing the Office of the High Representative, but the EU has shown little interest in seriously addressing this issue.   For all its faults, the prospect of EU accession remains the country's greatest hope, and now that visa liberalisation has been granted to neighbouring Serbia, a similar loosening of visa restrictions on Bosnia would do much to help ease frustrations in the country.  A concerted effort by international actors and NGOs to no longer perpetuate compulsory ethnic divisions in areas such as education would also help break the cycle of ethnopolising the country on the logic that it can only function under such a structure. To overstate Bosnia's instability is unhelpful, and when there is no serious question of whether the Republika Srpska will secede, it seems time to address the fact that, fifteen years after Dayton, a peace accord is still posing as a permanent constitution.