For the regime to work, inspectors must have access to private enterprises with dual-use capabilities. Private enterprises subject to compliance measures are rightly concerned about the protection of their proprietary information and trade secrets. Private industry representatives could also be included in this cross-fertilization process. Create a Committee of Private Industry Experts to review periodically the confidentiality regime and make recommendations to the Conference of States Parties. The Rolling Text's proposed attempts to go beyond the CWC confidentiality regime in connection with post-breach rules are questionable.
Protocol are unlikely to impose liability on themselves.
Sovereign immunity will prevent suits by companies in their domestic courts against States Parties that might be involved in misusing confidential information. Proposed U.S. legislation to implement the CWC facilitates such claims by American companies against the United States. Ultimately, however, this remedy is a matter of national or constitutional law within States Parties. The FAS Working Group believes that the best way for the Ad Hoc Group to address the serious concern of protecting confidential information is to emphasize prevention rules. The CWC confidentiality regime provides an excellent precedent and should continue to be utilized by the BWC Protocol negotiators.