On March 5, the Inter-American Court of Human Rights issued its advisory opinion OC-30/25 (available in Spanish here), requested by Mexico (for which I currently serve as Legal Adviser to the Ministry of Foreign Affairs), on the responsibility of States regarding their human rights obligations in light of the illicit trafficking of firearms. The opinion addresses key questions about the obligation to effectively prevent and combat this criminal activity. In particular, it considers the impact that the illicit trafficking of arms has in the protection of human rights in the region; the scope of the due diligence obligations both of States and private entities; the importance of marking, tracking and tracing these weapons and their parts, components, and ammunition; the obligation to ensure compliance by private companies; the need to ensure legal remedies for damages’ and the obligation of international cooperation.
These issues are vital for a comprehensive and successful strategy to address this scourge, especially in Latin America, where the illegal flow of arms comes from the United States – the world’s largest gun manufacturer.
Mexico, the Illicit Arms Trade, and a Multi-Pronged Legal Strategy
Compared to many other countries, Mexico has a comparatively strict legal regime governing the acquisition and purchasing of firearms by private individuals. Aside from screening, background checks, and legal permit requirements, there is only one store in the entire country through which guns can be purchased – a store that belongs to the Mexican Army. However, despite this regulatory framework, Small Arms Survey calculates that almost 17 million weapons are currently in the hands of the civilian population. The mere volume suggests that this cannot be the result of legal purchases. And it is not.
According to a report issued by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), in 2024, 70.5 percent of all seized firearms (18,249 out of 25,884 traced arms) in Mexico were traced back to the United States. The Guardian reported last February that “conservative estimates suggest 135,000 guns are trafficked into Mexico annually, though some studies suggest as many as 730,000 American firearms are smuggled into Mexico every year. That would mean 2,000 U.S. guns crossing the border every day.” Even the most conservative estimation is beyond comprehension – and it is utterly unacceptable.
This is the context under which Mexico brought two civil lawsuits in U.S. courts against gun manufacturers and stores, respectively, alleging that their negligent practices allowed for the illicit trafficking to occur. The case brought against gun manufacturers before a District Court in Boston ended up being dismissed by the U.S. Supreme Court last year. The second lawsuit, brought against five gun stores in Tucson, Arizona, has continued after the Supreme Court’s ruling, with the parties currently in discovery.
Additionally, and as part of a broader legal strategy, Mexico also requested an advisory opinion from the Inter-American Court of Human Rights, proposing questions on two main issues: i) the scope of the responsibility of private entities devoted to the manufacture, distribution, and sales of firearms, with respect to negligent commercial practices that result in human rights violations in the Americas; and ii) the efforts that States must undertake to ensure judicial protection to the victims of gun violence as a result of such negligent practices.
The Inter-American Court’s Advisory Opinion
As part of the advisory proceedings, in the written stage the Court received 64 submissions from a broad range of relevant stakeholders. Sixty-two of those submissions were supportive of Mexico’s position, including those from Bolivia, Colombia, Costa Rica, and an important number of civil society organizations, while only two had an opposite view – one from the United States and another from the National Shooting Sports Foundation, a U.S.-based trade association.
The Court’s advisory opinion largely adopts and supports Mexico’s arguments. It starts by recognizing that, in Latin America and the Caribbean, there is a close connection between the illicit trafficking in small arms and light weapons and different forms of transnational organized crime, including drug trafficking, gang violence and illegal mining (para. 44). It also concludes that this illegal activity has a negative impact by increasing the volume and intensity of violence which, in turn, leads to potential human rights abuses while having a negative impact on the economy of states and on democracy in the region (para. 46).
In analyzing the obligations of States, the Court focuses on five main aspects: i) due diligence; ii) marking, tracking and tracing; iii) private companies’ oversight; iv) judicial remedies; and v) international cooperation. The analysis of these obligations is based on several international law instruments, including the American Convention on Human Rights; the United Nations Convention against Transnational Organized Crime and its Protocol; the Arms Trade Treaty; the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials; and the International Covenant on Civil and Political Rights.
It also takes into consideration other soft law instruments, including the U.N. Guiding Principles on Business and Human Rights. The inclusion of the Guiding Principles – a set of guidelines for States and companies to prevent and address human rights abuses committed in business operations – in its analysis contributes to building a coherent and comprehensive assessment of the obligations of private entities vis-à-vis the prevention of arms trafficking and, therefore, of human rights violations as a consequence of armed violence.
One key aspect that makes this advisory opinion so important – and that truly advances the law on this subject matter – is that it addresses in more detail the obligations that private entities (such as gun manufacturers, distributors, or sellers) have towards the illicit trafficking of firearms. In particular, the Court indicated that the duty of oversight by the State implies that it must ensure that private companies implement compliance measures in order to avoid or minimize the risks of human rights violations because of their activities (para. 91). In this regard, the Court cited its previous jurisprudence (see Caso de los Buzos Miskitos (Lemoth Morris y otros) v. Honduras, para. 51; and Caso Habitantes de La Oroya v. Perú, para. 114) to link this obligation to the broader notion that companies must adopt, on their own, preemptive measures for the protection of the human rights of their workers, as well as to avoid their activities having negative impacts in the communities in which they operate (para. 92).
This is not a minor thing. The recognition that private actors have a role in the prevention and combat of the illicit trafficking of firearms widens the spectrum of responsibility and acknowledges that this criminal activity goes way beyond States’ obligations in terms of legislation and enforceability. It strikes a chord when assessing the negligence that companies in the gun industry have in their business practices. This reasoning indicates that the adequate protection of human rights necessarily implies an integral analysis of the chain of production, distribution, and commercialization of arms. The Court even mentions that the obligation to adopt mitigation measures and accountability mechanisms for damages caused, must be regulated by States but also implemented by private companies of that sector (see paras. 97-99).
This also links to the obligation recognized by the Inter-American Court for effective remedies. In the case of the trafficking of illicit arms, States have the duty to ensure effective judicial remedies for any impacts caused to human rights, both at the national and transnational levels, and whether by the State itself or by a third party when it can be demonstrated that there was a lack of compliance of their due diligence obligations regarding prevention (para. 102). This is in stark contrast with the Protection of Lawful Commerce in Arms Act (PLCAA), which gives the gun industry in the U.S. unique protection from civil claims, depriving victims from effective judicial remedies.
All these have been crucial arguments in Mexico’s aforementioned lawsuits filed in U.S. courts. Even the U.S. Supreme Court, while dismissing Mexico’s case against gun manufacturers, wrote about unlawful sales by companies, “We have little doubt that, as the complaint asserts, some such sales take place—and that the manufacturers know they do.”
As Jonathan Lowy and I have already said elsewhere, “the complaint Mexico filed showed the world how the gun industry is part of the gun violence problem, and how it could also be part of the solution by cutting off the flow of illegal guns to criminals.” Now the Inter-American Court has also validated these arguments.
Looking Ahead
Advisory Opinion OC-30/25 sheds new light on the responsibility of States and private actors in the prevention and combating of the illicit trade in firearms. It opens a new chapter that allows for further development of the law when it comes to due diligence obligations with respect to negligence by the gun industry. This is especially crucial in Latin America and the Caribbean, where violence is fueled by this criminal activity.
The Court also emphasized another key aspect in addressing this scourge: the obligation of international cooperation. This has also been an element central to Mexico’s national security strategy. To effectively prevent, combat and eradicate the illicit trade in arms, international cooperation – bilateral, regional, global – is absolutely necessary.
The United States and Mexico have both acknowledged this, and are determined to strengthen their bilateral security cooperation. During Secretary of State Marco Rubio’s visit to Mexico last September, where he met both President Claudia Sheinbaum and Secretary of Foreign Relations Juan Ramón de la Fuente, a Joint Statement on Security Cooperation between the United States and Mexico was issued, in which both countries agreed to:
reaffirm our security cooperation, which is based on the principles of reciprocity, respect for sovereignty and territorial integrity, shared and differentiated responsibility, as well as mutual trust. The aim is to work together to dismantle transnational organized crime through enhanced cooperation between our respective national security and law enforcement institutions, and judicial authorities. Additionally, we are working to address the illegal movement of people across the border. This cooperation through specific and immediate actions will strengthen the security along our shared border, halt the trafficking of fentanyl and other illicit drugs, and stop arms trafficking. (emphasis added)
Mexico will continue to take all national measures to advance its national security strategy – one that is already giving positive results. At the same time, it will also continue to advocate for more bilateral cooperation and coordination – without subordination – to stop the illegal arms trafficking. And it will also continue to advance its efforts through legal channels, promoting respect for the rule of law, as part of its comprehensive strategy, which includes the pending case in Tucson, Arizona, against gun stores. In this sense, the recent advisory opinion of the Inter-American Court gives a renewed boost to these efforts and has therefore been welcomed by Mexico. The ultimate objective is to finally free the people – within our country and in all the Americas – from the pain and suffering that firearms have brought to our societies. This is not only a legal demand; it is the condition sine qua non for the protection and enjoyment of the human rights of our peoples.
– Pablo Arrocha Olabuenaga, Published courtesy of Just Security.
