[Interview] León Castellanos-Jankiewicz: ‘Mexico is serious about making the US gun industry accountable for the damages caused with their products’

Asser Institute researcher León Castellanos-Jankiewicz is actively following the Mexico v. Smith & Wesson litigation, initiated by Mexico against six U.S. gun manufacturers, a potentially game-changing case for gun control. The ins and outs of the case will be discussed during the online event ‘Transnational civil litigation and corporate liability’ on May 2. Ahead of the event, we spoke with León Castellanos-Jankiewicz. ‘The outcome of this case could not only benefit Mexico but all countries in Central America that are suffering from gun violence.’ An interview.

You have been publishing on the Mexico v. Smith & Wesson litigation. Can you tell us why you are following this case?
‘The Mexico v. Smith & Wesson case is a potential game-changer for gun control, both in Mexico and in the United States.  This is mainly because Mexico is demonstrating a really innovative way of addressing human rights issues without using human rights law. Last August, Mexico filed a complaint against Smith and Wesson and other gun manufacturers in the District Court of Massachusetts. Mexico filed this complaint due to the extensive amount of gun violence in Mexico that is ending lives daily. In 2019 alone, 34,000 lives were taken because of gun violence and these record numbers have continued since. Mexico determined that nearly fifty percent of crime guns found in Mexico come from the manufacturers that are named as defendants in this case.

The country now claims that these gun companies are negligent in not only the manufacturing process but also in their marketing and distribution practices. This is because they do not exercise due diligence to ensure that the guns are kept from crossing the border illegally. It's really easy to smuggle these weapons across the border into Mexico, also because southern states in the United States are usually more sympathetic towards gun ownership, which leads to inadequate legislation and the lack of meaningful enforcement of gun laws across the border. But the companies’ behaviour also has transborder implications, and Mexico is aiming to hold these companies responsible for their lack of oversight in this regard.

I think that this case shows a clever pathway towards making corporations uphold human rights as it shows that a state, Mexico, is very serious about making the arms industry accountable for the damages of their products. Mexico shows that gun smuggling could be prevented at a major source. The impact of this case will not only benefit Mexico but also all of Central America and other countries suffering from gun violence, such as Guatemala, Honduras and Belize.’

Mexico is suing in the US courts. Does that make international law less relevant?
‘The fact that the case is filed in a domestic court does not mean that international law becomes less relevant. On the contrary, I see that the enforcement of the international legal standard of due diligence in a domestic court would contribute a lot to upholding the rule of law. Mexico shows that international legal standards create the possibility for transnational litigation. Mexico’s approach of transnational litigation is interesting as it does not directly invoke human rights standards, because they are suing companies, which are non-state actors. Despite using civil liability law, Mexico is ultimately still protecting the rights of vulnerable people across the border.

By using this approach, Mexico does not have to invoke human rights law to protect human rights. So, I think that this is an innovative way of addressing human rights issues without using human rights law when it comes to addressing businesses or other non-state actors. After all, businesses are not direct parties of human rights treaties. Finally, bringing a claim against the US itself in some international forum would present serious jurisdictional and political challenges, especially considering that the Biden administration is sympathetic to Mexico’s cause.’

Would you say that Mexico’s approach is more effective than a human rights approach?
‘I indeed think it is effective, and it is politically savvy. If Mexico would have used human rights law, it would have to confront the US government directly because human rights obligations are addressed to governments. These gun manufacturer companies are based in the United States, so Mexico would have to go to the US government if it were to invoke human rights norms to ask the Biden White House and State governments to stem the flow of guns into Mexico through their own regulatory systems. That is one way of doing it, but I can imagine that from a diplomatic or strategic perspective, Mexico believes that going against the companies themselves will be more advantageous. For Mexico, maintaining good relations with the United States on many fronts including migration, trade, security and other bilateral agendas is crucial. I don't think that it is a question of convincing the American government to prevent the illegal flow of guns, especially since the subject touches a bipartisan nerve there and also because the Biden administration is already implementing some light-touch reforms. So I think Mexico has less to lose by trying to get the companies to improve their practices.’

For you personally, what draws you to this case?
‘I think human rights universality is increasingly controversial, as human rights can take different meanings when applied to the domestic sphere. Mexico shows how a state can have meaningful outcomes in protecting human rights without having to resort to international human rights law that is designed to mainly apply to states. It shows the potential of private law civil litigation as well as transnational law in addressing cases of compliance and due diligence.

Apart from the Mexico’s perspective, the optics of gun control in the United States itself is also important. Gun companies are essentially immune from prosecution in the United States, because of the PLCAA law of 2005 that gives them immunity for damages caused with their weapons in the United States. Over and over again, we've seen victims, families of victims and survivors going to courts in the US trying to hold these companies accountable for their business practices.

Now, what is interesting is that this would be the first time that the companies are confronted with a claimant that is a foreign sovereign: Mexico. Not only that, Mexico claims that the damage is occurring in its own territory. Whereas for all of the previous cases, the damage occurred in the United States, which gave these companies immunity under the PLCAA. Mexico is saying that this immunity does not apply if the damage occurs in Mexico. It's a potentially game-changing case for gun control, both in Mexico and in the United States as they can start to chip away at that immunity even if the Judge declares the case admissible. Even if Mexico loses, if the judge finds that he has jurisdiction over the case, it will mean that that this procedural immunity is no longer considered to be absolute, as it has thought to be before.’

About León Castellanos-Jankiewicz
Dr León Castellanos-Jankiewicz is researcher in international law at the Asser Institute and academic coordinator of the Netherlands Network for Human Rights Research. León is part of the research strand ‘in the public interest: accountability of the state and the prosecution of crimes’, which examines the accountability of states in light of public interest standards in the context of counter-terrorism, the prosecution of individuals for international and transnational crimes in the public interest and the role of journalists, the (new) media, human rights NGOs and academics in protecting and promoting public interest standards.

Advance your knowledge on the Mexico v. Smith & Wesson case
On 02 May 2022, the Asser Institute, the University of Amsterdam and the Embassy of Mexico in the Netherlands, with the generous support of the Royal Netherlands Society of International Law (KNVIR) and the Netherlands Network for Human Rights Research, are organising an event that will address the potential implications of this case within transnational corporate liability for gun control and other areas. Topics discussed will include issues of jurisdiction, admissibility and applicable law related to Mexico’s seisin of the U.S. court system, as well as derivative modes of corporate liability such as complicity. Additionally, speakers will broach the extraterritorial obligations of companies in respect to damage involving their products occurring across borders, including obligations arising out of international human rights law, international humanitarian law, and the law relating to the arms trade. Sign up now.

Read more
Mexico v. Smith & Wesson: US court duel over extraterritorial legal issues looms with motion to dismiss by León Castellanos-Jankiewicz
On November 22, Smith & Wesson and other U.S. gun manufacturers and distributors moved to dismiss the civil complaint filed against them by Mexico in the U.S. District Court of Massachusetts. The case involves a number of transnational legal issues, including extraterritoriality, Mexico’s sovereign status, and the application of Mexican law in U.S. courts. The suit also highlights the growing relevance of transnational litigation in the field of corporate accountability. Read more.

Mexico’s amnesty proposal: an instrument of transitional justice? by León Castellanos-Jankiewicz
As violence in Mexico reaches record highs, President Andrés Manuel López Obrador has proposed an amnesty law aimed at benefiting individuals accused of involvement in the country’s drug trade. If adopted, the government’s proposal to offer leniency to cartel foot soldiers would represent a step forward in liberalizing the country’s punitive drug policy and, most importantly, in acknowledging the social dimension of the structural violence.

‘Truth and Transitional Justice in Latin America’, online presentation by León Castellanos-Jankiewicz in the Expert Panel on Missing Persons and Memory Governance, 24 September 2020.