Canada’s unique model for solving the crisis in Ukraine – By Philip Petraglia, B.A., LL.L.

Russia’s invasion of Ukraine is illegal under international law and could set a tragic precedent for other nations with authoritarian leaders like Putin to follow. Canada’s response has been to transport a plane load of guns to Ukraine. We can do better.

It is true that for any believer in the rule of law the situation looks apocalyptic. Russian troops are pouring into Ukraine by the thousands, well over two million Ukrainian civilians have fled to neighbouring countries, and events are in a state of a downward spiral. But is there cause for hope for lasting peace? This commentary suggests there is, and that the start of the answer is found in how Canada found a way to accommodate similar types of nationalistic challenges within its borders; specifically with its construction of a constitution that protects its distinct and significant French speaking citizens in Quebec.

This is not to say that Ukraine has necessarily to adopt our federal system. But by giving Ukraine’s Russian speaking areas local autonomy, such as Quebec currently enjoys, Ukraine would achieve two important goals. The first would be to bring the secessionist regions of Crimea, Donbas, and Luhansk back under Ukrainian jurisdiction. The second would be to end the war by guaranteeing Russian speakers linguistic and cultural protections.

What then are some of the laws protecting the rights of Quebec’s French speaking minority? The first, and by far the most important, are linguistic guarantees. For example, Quebec passed Bill 101 in 1977 making French Quebec’s official language. This law not only gave francophones the right to work in French, but also encouraged anglophones living and working in Quebec to learn French. Local parliaments in Russian speaking areas of Ukraine could do the same. This would, in effect, keep Ukrainian nationalists from destroying Ukraine’s Russian speaking identity.

Other legal guarantees abound. Quebec, like every other province, has jurisdiction over education, administration of hospitals, natural resources, agriculture, land use, local waterways, and the creation and management of towns and cities. Similar jurisdiction could be passed to parliaments in Crimea, Donbas, and Luhansk.

But more importantly, Quebec has its own legal system. Known as Civil Law and based on the Civil Code of Quebec, this legal system regulates private affairs such as contracts and property rights. Thus unlike the rest of Canada, where the Common Law applies, Quebec was given the right to keep its own legal system upon entering Confederation in 1867.

In sum, these protections, which every Canadian province enjoys, mean that the lives of most Canadians are regulated primarily by provincial laws. The Federal government, in contrast, has jurisdiction over matters such as banking, intellectual property, criminal law, immigration, citizenship, income tax, and customs and borders.

This is not to say, however, that a unitary state like Ukraine should adopt Canada’s division of powers word per word. But it is a good starting point. Ukraine is a big country with twenty-seven regions. It could then, like other large countries, choose to adopt a federal system. Or it could, given the current situation, keep its present system while providing for local autonomy in the break away regions.

This takes us back to the current crisis in Ukraine. The two main antagonists, Russia and Ukraine, both have leaders with law degrees. And while neither Vladimir Putin nor Volodymyr Zelensky practiced law, both leaders at one point studied constitutional law. This is where Canada can help find a solution to the current crisis. Canada’s Minister of Foreign Affairs, Melanie Joly, is also trained as a lawyer. Perhaps Canada’s role should be to encourage Putin and Zelensky to look at the constitutional guarantees enjoyed by Quebec’s French speakers, and to urge them to amend Ukraine’s constitution to provide similar guarantees for Ukraine’s Russian speaking minority.

What I am suggesting is an example of what the American scholar, Joseph Nye, calls soft power. The current policy of imposing severe economic sanctions on Russia, while arming the Ukrainian army and boasting NATO’s presence in Europe, should no doubt continue. This is an example of hard power. But destroying the Russian economy and fighting Putin’s army in Europe will not be enough to avoid a human tragedy of epic proportion. In the end, both sides will eventually be forced to the bargaining table, hopefully sooner than later, and Canada’s unique contribution can be pivotal in finding a long term solution that is fair to both sides.

Editor’s Note: A member of the Quebec Bar since 1991, Philip Petraglia is a Canadian freelance legal researcher and editor based in Canada. The views expressed are strictly his own.

Avoiding a global catastrophe in Ukraine through strategic diplomacy by Philip Petraglia, B.A., LL.L

There’s a lot going on in the world as 2022 unfolds. Concerns over the pandemic and global warming are foremost among them. We worry about such issues because they pose an existential threat to our (we humans) very survival as a species. This is as it should be, but it also keeps us from thinking about other global disasters looming around the corner.

The current conflict between Russia and Ukraine is one which the average citizen doesn’t think much of. And neither do our politicians. Here are some facts: Russia is currently amassing thousands of troops close to its border with Ukraine. Is Russia planning an imminent attack on Ukraine? Is Vladimir Putin, Russia’s autocratic and nationalistic president, merely bluffing? And why should the West, led by the United States and to a lesser extent, the European Union, even come to Ukraine’s defence?

The big issue has to do with Ukraine’s desire to join NATO, a military alliance established during the Cold War to deal with the threat of Soviet aggression in Europe. The alliance worked brilliantly. In short, it avoided going to war with the Soviet Union (USSR) by applying a doctrine known as deterrence or the fear of mutual destruction. No wars were fought and major skirmishes between NATO and the Warsaw Pact (Soviet counterpart to NATO) never took place. And yet the Cold War came to an end in 1989 with the fall of the Berlin wall and the eventual disintegration of the Soviet Union in 1991 into 15 independent nation states, Russia and Ukraine chief among them.

This should have ushered in a golden age of great relations between Russia and the West. After all, the Cold War was over and the Warsaw Pact had officially dissolved in 1991. Yet something strange happened. Led by the Baltic states of Lithuania, Latvia, and Estonia, NATO would eventually expand from 15 member states to 30, including 10 states from the former Warsaw Pact. The worse part for the Russians was the admission of these three Baltic states bordering Russia. To make matters worse, all three states have sizeable Russian speaking minorities.

But why is NATO expansion up to Russia’s border a problem for Russia? Seen from a Russian perspective, it’s equivalent to Russia signing a military alliance with either Canada or Mexico and then stationing troops near the US border. Or to use a better analogy, imagine if the Russians tried to install nuclear warheads in Cuba? Come to think of it, the Soviet Union did try in 1962, and the world’s two nuclear superpowers almost came to war. Known as the Cuban Missile Crisis, a nuclear holocaust that would have wiped out humanity was only avoided at the last minute when Nikita Khrushchev, the Soviet leader, gave the order for the ships to turn back.

This takes us back to the current conflict on Russia’s Border with Ukraine. Imagine a situation where Ukraine formally joins NATO. All scenarios point to Russia likely invading Ukraine. What would be the ramifications for humanity should Russia choose to invade its neighbour? Essentially every member state in the alliance, including the United States, would be obliged by article 5 of the North Atlantic Treaty to come to Ukraine’s defence. In other words, we would have a direct military confrontation between the United States and Russia, the world’s two biggest nuclear powers.

Optimists might think this would be a minor affair, that reasonable minds would agree to a truce, and that a long term peace arrangement would be arrived at after a few thousand casualties. But history suggests otherwise. Much the same was argued by politicians in 1914 when the First World War broke out. It was believed by all sides that the war would last perhaps six months and with minimal casualties. Instead, the war lasted four years and took millions of lives. Imagine then if Russia and a US led NATO were to take the same approach over Ukraine, should Ukraine choose to join NATO. How long would such a war last and how may human beings would be killed given 21st century technology? Would the US and Russia choose to use nuclear weapons? Why even take the chance of having the world’s two largest nuclear powers militarily confront one another?

To understand Russia’s obsession over Ukraine requires an understanding of Russian history, and the academic writings of John J. Mearsheimer, arguably America’s wisest political scientist.

Let’s start with Russian history. For Russian nationalists, Ukraine is where much of Russian civilization had its early beginnings. More specifically, nationalists and non-nationalists alike point to Kyiv, Ukraine’s capital. This city is to Russian nationalists what Jerusalem is to Jews and Arabs. In addition to ancient history, there’s modern history to consider, namely, the fact that Russian nationalists never accepted the breakup of the Soviet Union in 1991 into 15 states, despite Russia remaining the world’s largest nation-state.

As for Professor Mearsheimer, his seminal book, “Tragedy of Great Power Politics”, published in 2001, explains why great powers behave the way they do, especially when feeling threatened. More importantly, he has over the years correctly predicted that NATO’s expansion would antagonize Russian nationalists. Known as the father of offensive realism, Professor Mearsheimer has been encouraging US presidents to pursue pragmatism in foreign affairs and has been doing so for the past 25 years at the University of Chicago as a political scientist and international relations scholar. His central thesis is that all great powers have geopolitical interests and ambitions, and that America’s ignorance of this fact can lead to catastrophe and avoidable conflicts. In addition, Professor Mearsheimer makes the point that America has been trying to remake the world in its own image by attempting to spread liberal democracy, regardless of whether foreign nations with differing cultures are ready for it or even desire it. These two points no doubt explain why he was so critical of America’s intervention in both Vietnam and Iraq. Professor Mearsheimer’s fear is that any attempt to antagonize Russia would have even greater catastrophic results for humanity.

How then can we reduce the chance of an outright war between the world’s two superpowers? By far the best way would be for the West to re-assure Russia that Ukraine’s future membership in NATO is completely out of the question. This does not mean abandoning Ukraine. Rather, there are several pragmatic and safe steps the West can take to minimize any attempt on Russia’s part to invade Ukraine while not fuelling a major military showdown.

By far the most important one is to use the Finland model which worked magnificently during the Cold War. Situated in northern Europe, this Nordic country, like Ukraine, shares a long border with Russia but never joined NATO. Yet it was never absorbed by Russia during the Cold War that lasted from 1947- 1991. Russia and the West simply agreed to keep Finland neutral. And to understand why Russia respected Finland’s independence is to understand that Russia’s biggest concern is with defending its borders. Russia won’t attack any state bordering it if it doesn’t feel threatened. Bordered by 14 land neighbours, Russia’s borders are easy to access and difficult to defend. This explains why Russia seeks to defend what it calls the “near abroad”. For Russian nationalists, it’s a question of survival. Expanding NATO all the way to its borders is consequently seen as a threat to its national security.

Would Russia ever invade Ukraine if it felt necessary? It certainly did so in 2014 when it invaded and annexed Crimea in addition to Donetsk and Luhansk in eastern Ukraine, not far from Russia’s border, where many ethnic Russians live and work.

How then should the West react if an agreement to keep Ukraine out of NATO is reached and Russia still invades? Would Russia face a heavy price? The answer is clearly yes. Numerous measures could be taken against Russia. For example, the global community could place heavy economic sanctions on Russia while also imposing diplomatic ones. On a more local level, NATO could choose to beef up its military presence in Poland and Germany. Russia would become the old South Africa and treated with global sanctions.

More importantly, Putin understands that the average Russian citizen would not view an invasion favorably. Russia’s invasion of Ukraine would be met with stiff resistance from 40 million Ukrainians, and heavy Russian casualties might destroy Russia much the way the war in Afghanistan helped destroy the Soviet Union.

Wendy Sherman, the current US Deputy Secretary of State, recently stated that it was up to Ukraine as an independent state to decide whether it wished to join NATO. Incredibly, Jens Stoltenberg, NATO’s secretary general since 2014, who as an experienced diplomat should know better, recently said the same. Irresponsible comments such as these suggest both individuals have no understanding of either international relations or worse, history.

International relations is a profession requiring individuals who have at least some understanding of history and realpolitik. As Professor Mearsheimer recently pointed out, both the US and NATO are encouraging Ukraine to pursue an unrealistic course by provoking Russia. In sum, the desire for alliances and altruistic principles should never supersede the need to keep human made catastrophes like avoidable wars from occurring.