By Xuan W. Tay
In September, the federal court in Brooklyn unsealed an indictment against Linda Sun, a former aide to New York Governor Kathy Hochul, for failing to register as a foreign agent of the government of the People’s Republic of China (PRC) and the Chinese Communist Party (CCP). Sun is being accused of using her position to further the party-state’s interests by, for instance, preventing Taiwanese government representatives from meeting with New York State officials. These actions were allegedly taken at the request of PRC consular officials, and Sun reportedly received substantial economic benefits in return.
For many analysts, the allegations against Sun fall within a broader pattern of PRC officials seeking to co-opt local leaders. These “influence operations,” they argue, are designed to render the political processes of other states more friendly to Beijing’s interests. Naturally, PRC officials are not the only perpetrators. After all, the art of influence is inseparable from the work of diplomacy. International law does, however, impose some limitations on what one state can do within the jurisdiction of another. While the PRC will not face trial alongside Sun, its officials do not have free rein to carry out any sort of influence operations whatsoever.
Sun is far from the first case in recent years of the PRC allegedly seeking to co-opt overseas Chinese leaders. In February 2024, a Hong Kong-born Singaporean citizen became the first individual to be designated as a “politically significant person” under Singapore’s Foreign Interference (Countermeasures) Act (2021), subjecting him to disclosure requirements. While the authorities did not expressly state so, news reports suggest the businessman was being cultivated by PRC officials. Also in 2024, a Canadian Intelligence report accused the PRC consulate in Toronto of helping a Chinese-Canadian politician win his party’s nomination. The report indicated an agent of the consulate went so far as to bus Chinese high school students to the politician’s district and provide them with falsified documents so they could vote for him.
These cases are especially worrying for overseas Chinese communities because they seem to confirm a widespread and dangerous assumption, both within and outside the PRC, that overseas Chinese individuals are more easily co-opted by Beijing and therefore are untrustworthy. Of course, the overseas Chinese make up a kaleidoscope of persons with diverse relationships to Beijing – including no relationship at all - so it is improper to suggest they are a monolithic group more prone to being co-opted by inducements or threats.
States may not intervene or interfere in the sovereign affairs of each other, and diplomats may not interfere in the internal affairs of states where they serve.
At the level of international law, the PRC’s alleged use of local leaders to influence politics in other states risks violating two important norms: states may not intervene or interfere in the sovereign affairs of each other, and diplomats may not interfere in the internal affairs of states where they serve.
The first principle, long recognized as a cardinal rule of customary international law, was interpreted by the International Court of Justice in Military and Paramilitary Activities in and Against Nicaragua (1986) to forbid all acts of coercing another state. It would thus be unlawful for a foreign state to support local paramilitary activities in a bid to secure a change in local government policies. It is less clear whether the principle also extends to acts which do not meet the threshold of coercion. Does a foreign state violate international law if all their officials do is to co-opt local leaders, such as through material incentives, with a view to influence the target state’s political processes?
Relying on Nicaragua, many scholars tend to assume intervention and interference cover only coercive acts. There are good reasons to think the conventional wisdom is wrong. To begin, the court itself qualified that it would “define only those aspects of the principle which appear relevant to the resolution of the dispute” at hand, which involved US support for paramilitary activities against the government of Nicaragua. Indeed, a careful reading of Nicaragua suggests the court only addressed “intervention” and not “interference,” even though these two concepts are often conflated in legal discourse. More importantly, states have always recognized that acts which do not rise to the level of coercion can fall afoul of the principle. For instance, the text of the Friendly Relations Declaration adopted by the UN General Assembly in 1970, which is generally treated as reflective of customary international law, expressly provides that the principle requires that states do not “organize, assist, foment, finance, incite or tolerate terrorist or armed activities.” To assist, foment, or incite plainly does not rise to the level of coercion. As I argue elsewhere, the principle of non-intervention and non-interference better reflects a corpus of rules designed to manage a variety of different interactions between states, not a singular definition of coercion.
Yet another act which does not rise to the level of coercion, but which may nonetheless attract legal controversy, is that of electoral interference. UN General Assembly Resolution 44/147 (1989) specifically affirms the illegality of “extraneous activities … that intend to sway the results” of “national electoral processes.” This seems to be precisely what happened in the example of the Chinese-Canadian politician. Of course, General Assembly resolutions are not binding sources of law, but Resolution 44/147 does reflect the view of a majority of states, including the PRC, which voted for it. Additionally, representatives of some states that initially objected to the resolution, including the US, have more recently expressed the view that electoral interference can violate the principle of non-intervention and non-interference. Taking all this into account, one might argue there is growing opinio juris that states should not engage in activities, such as busing voters, with the aim of swaying the result of foreign elections.
Second, alleged efforts by PRC officials to cultivate local leaders may implicate the separate duty of diplomatic non-interference. Diplomatic non-interference is part of treaty law, finding expression in Article 41(1) of the Vienna Convention on Diplomatic Relations (1961) and Article 55(1) of the Vienna Convention on Consular Relations (1963). This duty not to interfere “in the internal affairs” of the receiving country applies only to diplomatic and consular officials. There is general agreement that the duty of diplomatic non-interference is more expansive in what it prohibits than the customary principle of non-intervention and interference.
The duty of diplomatic non-interference is relevant because many cases concerning the cultivation of local leaders appear to involve PRC diplomatic or consular officials, including the Linda Sun case.
Policymakers in target states should direct their responses at the perpetrating state, while protecting local diasporic communities.
Generally speaking, it is recognized that the duty does not forbid consular and diplomatic officials from contacting, persuading, or even lobbying individuals and institutions, this being par for course in the conduct of foreign relations. The provision of material inducements is more problematic. Some writers consider bribery to constitute an illegal form of diplomatic interference. The challenge is that bribery is not a well-defined term in international law, and it is not always easy to distinguish a bribe from a legitimate exchange for services. Lastly, the International Law Commission’s commentary to the draft of the Vienna Convention on Diplomatic Relations expressly states that “tak[ing] part in political campaigns” constitutes a form of interference. This phrasing would appear broad enough to cover alleged efforts by PRC diplomatic officials to aid the election of Beijing-friendly politicians.
This analysis suggests there are at least a few legal red lines that officials from the PRC, or for that matter any country, may not cross in their purported attempts to cultivate local leaders. More broadly, an international legal analysis suggests policymakers in target states should direct their responses at the perpetrating state, while protecting rather than persecuting local diasporic communities. Practical responses could include publicizing statements that emphasize the illegality of the foreign state’s behavior, declaring complicit foreign officials persona non grata, and lodging diplomatic protests with the foreign state.
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Xuan W. Tay is a visiting doctoral researcher at New York University School of Law, a PhD candidate at Adelaide Law School, and a former judicial fellow to the International Court of Justice.
Suggested citation:
Xuan W. Tay, “Chinese Influence Operations Under International Law,” USALI Perspectives, 5, No. 1, November 12, 2024, https://usali.org/usali-perspectives-blog/chinese-influence-operations-under-international-law.
The views expressed in USALI Perspectives essays are those of the authors, and do not represent those of USALI or NYU.
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