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13116 Belize - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13116

JUDICIAL ASSISTANCE

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and BELIZE

 

Signed at Belize September 19, 2000

with

Exchange of Notes

 

 

 

 

 


 

 


NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”


 

 

 

 

BELIZE

Judicial Assistance

Treaty signed at Belize September 19, 2000;
Transmitted by the President of the United States of America
to the Senate July 15, 2002 (Treaty Doc. 107-13,
107th Congress, 2d Session);
Reported favorably by the Senate Committee on Foreign Relations
October 8, 2002 (Senate Executive Report No. 107-15,
107th Congress, 2d Session);
Advice and consent to ratification by the Senate
November 14, 2002;
Ratified by the President January 23, 2003;
Ratified by Belize January 8, 2001;
Ratifications exchanged at Washington July 2, 2003;
Entered into force July 2, 2003.
With exchange of notes.

TREATY
BETWEEN THE GOVERNMENT OF
THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF BELIZE
ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
TABLE OF CONTENTS
Article 1 Scope of Assistance
Article 2 Central Authorities
Article 3 Limitations on Assistance
Article 4 Form and Contents of Requests
Article 5 Execution of Requests
Article 6 Costs
Article 7 Limitations on Use
Article 8 Testimony or Evidence in the Requested State
Article 9 Records of Government Agencies
Article 10 Testimony in the Requesting State
Article 11 Transfer of Persons in Custody
Article 12 Location or Identification of Persons or Items
Article 13 Service of Documents
Article 14 Search and Seizure
Article 15 Return of Items
Article 16 Assistance in Forfeiture Proceedings
Article 17 Compatibility with Other Arrangements
Article 18 Consultation
Article 19 Ratification, Entry Into Force, and Termination
FORMS
Form A Certificate of Authenticity of Business Records
Form B Attestation of Authenticity of Foreign
Public Documents
Form C Attestation with Respect to Seized Articles
The Government of the United States of America and the Government of Belize,
Desiring to improve the effectiveness of the law enforcement authorities of both
countries in the investigation, prosecution, and prevention of crime through cooperation
and mutual legal assistance in criminal matters,
Have agreed as follows:
2
Article 1
Scope of Assistance
1. The Contracting Parties shall provide mutual assistance, in accordance with
the provisions of this Treaty, in connection with the investigation, prosecution, and
prevention of criminal offenses, and in proceedings related to criminal matters.
2. Assistance shall include:
(a) taking the testimony or statements of persons;
(b) providing documents, records, and articles of evidence;
(c) locating or identifying persons;
(d) serving documents;
(e) transferring persons in custody for testimony or other purposes;
(f) executing requests for searches and seizures;
(g) assisting in proceedings related to immobilization and forfeiture of
assets; restitution; collection of fines; and
(h) any other form of assistance not prohibited by the laws of the
Requested State.
3. Except as otherwise provided in this Treaty, assistance shall be provided
without regard to whether the conduct which is the subject of the investigation,
prosecution, or proceeding in the Requesting State would constitute an offense under the
laws of the Requested State.
4. This Treaty is intended solely for mutual legal assistance between the
Contracting Parties. The provisions of this Treaty shall not give rise to a right on the part
of any private person to obtain, suppress, or exclude any evidence, or to impede the
execution of a request.
Article 2
Central Authorities
1. Each Contracting Party shall designate a Central Authority to make and
receive requests pursuant to this Treaty.
2. For the United States of America, the Central Authority shall be the
Attorney General or a person designated by the Attorney General. For Belize, the Central
Authority shall be the Attorney General or a person designated by the Attorney General.
3. The Central Authorities shall communicate directly with one another for the
purposes of this Treaty.
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Article 3
Limitations on Assistance
1. The Central Authority of the Requested State may deny assistance if:
(a) the request relates to an offense under military law which would not
be an offense under ordinary criminal law;
(b) the execution of the request would prejudice the security or other
essential public interests of the Requested State;
(c) the request is not made in conformity with the Treaty;
(d) the request relates to a political offense;
(e) the request is made pursuant to Article 14 or 16 of this Treaty and
relates to conduct which if committed in the Requested State would
not be an offense in that State;
(f) the execution of the request requires compulsory measures in the
Requested State and the request does not establish that there are
reasonable grounds for believing that the criminal offense
specified in the request has been committed; or
(g) the execution of the request would be contrary to the Constitution of
the Requested State.
2. Before denying assistance pursuant to this Article, the Central Authority of
the Requested State shall consult with the Central Authority of the Requesting State to
consider whether assistance can be given subject to such conditions as it deems necessary.
If the Requesting State accepts assistance subject to these conditions, it shall comply with
the conditions.
3. If the Central Authority of the Requested State denies assistance, it shall
inform the Central Authority of the Requesting State of the basis for the denial.
Article 4
Form and Contents of Requests
1. A request for assistance shall be in writing except that the Central Authority
of the Requested State may accept a request in another form in emergency situations. If
the request is not in writing, the request shall be confirmed in writing within ten days
thereafter unless the Central Authority of the Requested State agrees otherwise.
2. The request shall include the following:
(a) the name of the authority conducting the investigation, prosecution,
or proceeding to which the request relates;
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(b) a description of the subject matter and nature of the investigation,
prosecution, or proceeding, including the specific criminal offenses
which relate to the matter;
(c) a description of the evidence, information, or other assistance sought;
and
(d) a statement of the purpose for which the evidence, information, or
other assistance is sought.
3. To the extent necessary and possible, a request shall also include:
(a) information on the identity and location of any person from whom
evidence is sought;
(b) information on the identity and location of a person to be served, that
person's relationship to the proceedings, and the manner in which
service is to be made;
(c) information on the identity and whereabouts of a person to be
located;
(d) a precise description of the place or person to be searched and of the
articles to be seized;
(e) a description of the manner in which any testimony or statement is to
be taken and recorded;
(f) a list of questions to be asked of a witness;
(g) a description of any particular procedure to be followed in executing
the request;
(h) information as to the allowances and expenses to which a person
asked to appear in the Requesting State will be entitled; and
(i) any other information that may be brought to the attention of the
Requested State to facilitate its execution of the request.
Article 5
Execution of Requests
1. The Central Authority of the Requested State shall promptly execute the
request or, when appropriate, shall transmit it to the authority having jurisdiction to do
so. The competent authorities of the Requested State shall do everything in their power to
execute the request. The competent judicial or other authorities of the Requested State
shall have power to issue subpoenas, search warrants, or other orders necessary to execute
the request.
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2. The Central Authority of the Requested State shall make all necessary
arrangements for and meet the costs of the representation in the Requested State of the
Requesting State in any proceedings arising out of a request for assistance.
3. Requests shall be executed in accordance with the internal laws and
procedures of the Requested State except to the extent that this Treaty provides otherwise.
Procedures specified in the request shall be followed except to the extent that those
procedures cannot lawfully be followed in the Requested State. Where neither the Treaty
nor the request specifies a particular procedure, the request shall be executed in
accordance with the appropriate procedure under the laws applicable for investigations or
proceedings in the Requested State.
4. If the Central Authority of the Requested State determines that execution of
a request would interfere with an ongoing criminal investigation, prosecution, or
proceeding in that State, it may postpone execution, or make execution subject to
conditions determined to be necessary after consultations with the Central Authority of the
Requesting State. If the Requesting State accepts the assistance subject to the conditions, it
shall comply with the conditions.
5. The Requested State shall use its best efforts to keep confidential a request
and its contents, if such confidentiality is requested by the Central Authority of the
Requesting State. If the request cannot be executed without breaching such confidentiality,
the Central Authority of the Requested State shall so inform the Central Authority of the
Requesting State, which shall then determine whether the request should nevertheless be
executed.
6. The Central Authority of the Requested State shall respond to reasonable
inquiries by the Central Authority of the Requesting State concerning progress toward
execution of the request.
7. The Central Authority of the Requested State shall promptly inform the
Central Authority of the Requesting State of the outcome of the execution of the request. If
the request is denied, the Central Authority of the Requested State shall inform the Central
Authority of the Requesting State of the basis for the denial.
Article 6
Costs
The Requested State shall pay all costs relating to the execution of the request,
except for the fees of expert witnesses, the costs of translation, interpretation, and
transcription, and the allowances and expenses related to travel of persons pursuant to
Articles 10 and 11, which costs, fees, allowances, and expenses shall be paid by the
Requesting State.
Article 7
Limitations on Use
1. The Requesting State shall not use any information or evidence obtained
under this Treaty for any purposes other than for the investigation, prosecution or
suppression in the territory of the Requesting State of the criminal offences stated in the
request without the prior consent of the Requested State.
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2. The Central Authority of the Requested State may request that information
or evidence furnished under this Treaty be kept confidential or be used only subject to
terms and conditions it may specify. If the Requesting State accepts the information or
evidence subject to such conditions, the Requesting State shall use its best efforts to comply
with the conditions.
3. Nothing in this Article shall preclude the use or disclosure of information to
the extent that there is an obligation to do so under the Constitution of the Requesting State
in a criminal prosecution. The Requesting State shall notify the Requested State in
advance of any disclosure made pursuant to this paragraph.
4. Information or evidence which has been made public in the Requesting State
in accordance with paragraphs 1 or 2 may thereafter be used for any purpose.
Article 8
Testimony or Evidence in the Requested State
1. Insofar as the laws of the Requested State allow, a person in the Requested
State from whom testimony or evidence is requested shall be compelled, if necessary, to
appear and testify or produce items, including documents, records, and articles of evidence.
2. Upon request, the Central Authority of the Requested State shall furnish
information in advance about the date and place of the taking of the testimony or evidence
pursuant to this Article.
3. The Requested State shall permit the presence of such persons as specified in
the request during the execution of the request, and shall allow such persons to question
the person giving the testimony or evidence.
4. If the person referred to in paragraph 1 asserts a claim of immunity,
incapacity, or privilege under the laws of the Requesting State, the testimony or evidence
shall nonetheless be taken and the claim made known to the Central Authority of the
Requesting State for resolution by the authorities of that State.
5. Evidence produced in the Requested State pursuant to this Article or which
is the subject of testimony taken under this Article may be authenticated by an attestation,
including, in the case of business records, authentication in the manner indicated in Form
A appended to this Treaty. Documents authenticated by Form A shall be admissible in
evidence in the Requesting State.
Article 9
Records of Government Agencies
1. The Requested State shall provide the Requesting State with copies of
publicly available records, including documents or information in any form, in the
possession of government departments and agencies in the Requested State.
2. The Requested State may provide copies of any records, including documents
or information in any form, which are in the possession of a government department or
agency in that State, but which are not publicly available, to the same extent and under the
same conditions as such copies would be available to its own law enforcement or judicial
authorities. The Requested State may in its discretion deny a request pursuant to this
paragraph entirely or in part.
3. Official records produced pursuant to this Article may be authenticated by
the official in charge of maintaining them through the use of Form B appended to this
Treaty. No further authentication shall be necessary. Documents authenticated under this
paragraph shall be admissible in evidence in the Requesting State.
Article 10
Testimony in the Requesting State
1. When the Requesting State requests the appearance of a person in that State,
the Requested State shall invite the person to appear before the appropriate authority in
the Requesting State. The Requesting State shall indicate the extent to which the expenses
will be paid. The Central Authority of the Requested State shall promptly inform the
Central Authority of the Requesting State of the response of the person.
2. The Central Authority of the Requesting State shall inform the Central
Authority of the Requested State whether a decision has been made by the competent
authorities of the Requesting State that a person appearing in the Requesting State
pursuant to this article shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty, by reason of any acts or convictions which
preceded his departure from the Requested State.
3. The safe conduct provided for by this Article shall cease seven days after the
Central Authority of the Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer required, or when the person,
having left the Requesting State, voluntarily returns. The competent authorities of the
Requesting State may, in their discretion, extend this period up to fifteen days if they
determine that there is good cause to do so.
Article 11
Transfer of Persons in Custody
1. A person in the custody of the Requested State whose presence in the
Requesting State is sought for purposes of assistance under this Treaty shall be transferred
from the Requested State to the Requesting State for that purpose if the person consents
and if the Central Authorities of both States agree.
2. A person in the custody of the Requesting State whose presence in the
Requested State is sought for purposes of assistance under this Treaty may be transferred
from the Requesting State to the Requested State for that purpose if the person consents
and if the Central Authorities of both States agree.
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3. For purposes of this Article:
(a) the receiving State shall have the authority and the obligation to keep
the person transferred in custody unless otherwise authorized by the
sending State;
(b) the receiving State shall return the person transferred to the custody
of the sending State as soon as circumstances permit or as otherwise
agreed by both Central Authorities;
(c) the receiving State shall not require the sending State to initiate
extradition proceedings for the return of the person transferred; and
(d) the person transferred shall receive credit for service of the sentence
imposed in the sending State for time served in the custody of the
receiving State.
Article 12
Location or Identification of Persons or Items
The Requested State shall use its best efforts to ascertain the location or identity of
persons or items specified in the request.
Article 13
Service of Documents
1. The Requested State shall use its best efforts to effect service of any
document relating, in whole or in part, to any request for assistance made by the
Requesting State under the provisions of this Treaty.
2. The Requesting State shall transmit any request for the service of a
document requiring the appearance of a person before an authority in the Requesting State
a reasonable time before the scheduled appearance.
3. The Requested State shall return a proof of service in the manner specified in
the Request.
Article 14
Search and Seizure
1. The Requested State shall execute a request for the search, seizure, and
delivery of any item to the Requesting State if the request includes the information
justifying such action under the laws of the Requested State.
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2. Upon request, every official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the continuity of custody, the identity
of the item, and the integrity of its condition. No further certification shall be required.
The certificate shall be admissible in evidence in the Requesting State.
3. The Central Authority of the Requested State may require that the
Requesting State agree to the terms and conditions deemed to be necessary to protect third
party interests in the item to be transferred.
Article 15
Return of Items
The Central Authority of the Requested State may require that the Central
Authority of the Requesting State return any items, including documents, records or
articles of evidence furnished to it in execution of a request under this Treaty as soon as
possible.
Article 16
Assistance in Forfeiture Proceedings
1. If the Central Authority of one Contracting Party becomes aware that
proceeds or instrumentalities of offenses that may be forfeitable or otherwise subject to
seizure are located in the other Contracting Party, it may so inform the Central Authority
of that other Party. If the Party receiving such information has jurisdiction in this regard,
it may present this information to its authorities for a determination whether any action is
appropriate. These authorities shall issue their decision in accordance with the laws of
their country. The Central Authority of the Party that received the information shall
inform the Central Authority of the Party that provided the information of the action
taken.
2 . The Contracting Parties shall assist each other to the extent permitted by
their respective laws in proceedings relating to the forfeiture of the proceeds and
instrumentalities of offenses, restitution to the victims of crime, and the collection of fines
imposed as sentences in criminal prosecutions. This may include action to temporarily
immobilize the proceeds or instrumentalities pending further proceedings.
3. The Party that has custody over proceeds or instrumentalities of offenses
shall dispose of them in accordance with its laws. Either Party may transfer to the other
Party all or part of such assets, or the proceeds of their sale, to the extent not prohibited by
the transferring Party's laws and upon such terms as it deems appropriate.
Article 17
Compatibility with Other Arrangements
Assistance and procedures set forth in this Treaty shall not prevent either
Contracting Party from granting assistance to the other Party through the provisions of
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other applicable international agreements, or through the provisions of its national laws.
The Parties may also provide assistance pursuant to any bilateral arrangement, agreement,
or practice which may be applicable.
Article 18
Consultation
The Central Authorities of the Contracting Parties shall consult, at times mutually
agreed to by them, to promote the most effective use of this Treaty. The Central
Authorities may also agree on such practical measures, including training and technical
assistance, as may be necessary to facilitate the implementation of this Treaty.
Article 19
Ratification, Entry Into Force, and Termination
1. This Treaty shall be subject to ratification, and the instruments of
ratification shall be exchanged at Washington as soon as possible.
2. This Treaty shall enter into force upon the exchange of instruments of
ratification.
3. This Treaty shall apply to any request presented after the date of its entry
into force whether the relevant acts or omissions occurred prior to or after that date.
4. Either Party may terminate this Treaty by means of written notice to the
other Party. Termination shall take effect six months following the date of receipt of the
notification.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments, have signed this Treaty.
DONE at Belize , in duplicate, this 19th day of September, 2000.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF
UNITED STATES OF AMERICA: BELIZE:
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Form A
CERTIFICATE OF AUTHENTICITY OF
BUSINESS RECORDS
I, [name] , attest on penalty of criminal punishment for false statement or
attestation that I am employed by and that
[name of business from which documents are sought]
my official title is . I further state that each of the records
[official title]
attached hereto is the original or a duplicate of the original record in the custody of
[name of business from which documents are sought].
I further state that:
(A) such records were made, at or near the time of the occurrence of the matters set
forth, by (or from information transmitted by) a person with knowledge of those
matters;
(B) such records were kept in the course of a regularly conducted business activity;
(C) the business activity made such records as a regular practice; and
(D) if any such record is not the original, it is a duplicate of the original. [signature] [date]
Sworn to or affirmed before me, [name] , a judicial officer, this
day of , 19 .
12
Form B
ATTESTATION OF AUTHENTICITY OF
FOREIGN PUBLIC DOCUMENTS
I,[name] , attest on penalty of criminal punishment for false statement or
attestation that my position with the Government of [country] is
[official title]
and that in that position I am authorized by the law of [country] to
attest that the documents attached and described below are true and accurate copies of
original official records which are recorded or filed in
[name of office or agency] ,
which is a government office or agency of [country] .

Description of Documents:
[signature]
[title]
[date]
13
Form C
ATTESTATION WITH RESPECT
TO SEIZED ARTICLES
I, [name] , attest on penalty of criminal punishment for false statement or
attestation that my position with the Government of is [country]
I received custody of the articles listed below from[official title] [name of person]
on [date] , at [place] in the same condition as when I
received them (or, if different, as noted below).
Description of Articles:
Changes in condition while in my custody:


[signature]
[title]
[place]
[date]
Official Seal
EMBASSY OF THE
UNITED STATES OF AMERICA
No. 032
Excellency:
I have the honor to refer to the Treaty on Mutual Legal Assistance in
Criminal Matters between the Government of the United states of America and
the Government of Belize ("the treaty") and to express the understanding of the
United States regarding the application of the treaty to criminal tax matters.
Article 1(1) of the Treaty provides that assistance may be granted in
connection with "the investigation, prosecution, and prevention of criminal
offenses, and in proceedings related to criminal matters."
During the negotiations, the United States delegation was asked whether
these provisions could be interpreted to exclude assistance under the treaty for
civil and administrative income tax matters that are unrelated to any criminal
matter. The United States delegation agreed that the provision could be so
interpreted, and confirmed that the United States does not intend to seek
assistance under the treaty in the routine civil and administrative enforcement of
our income tax laws, including the regulation, imposition, calculation and
collection of such income taxes.
I have been advised by the Tax Division of the United States Department
of Justice that criminal tax cases in the United States always involve a voluntary
and intentional violation of a known legal duty. Under United States law, this
standard entails willful conduct and would not be met where a defendant has
acted negligently or carelessly. Moreover, to establish the required level of willful
conduct under United States law, the Government prosecutor must show that the
defendant took affirmative action, the likely effect of which was to mislead or
conceal. Examples of such willful activity include keeping a double set of books,
making false entries or alterations to financial records, or concealing assets or
covering up sources of income.
Further, although the treaty has no general dual criminality requirement,
my Government understands United States and Belizean law to be consistent
with respect to criminalizing willful, fraudulent misconduct by private persons in
representations to the Government. As a result, the conduct underlying a United
States Government request to Belize for assistance in a criminal tax evasion
case would in all likelihood also be criminalized under the law in Belize.
Finally, Article 9 of the treaty has additional provisions that are relevant
when a Party requests Government records in a criminal taxation matter. The
law and policy of both the United States and Belize recognize the need in many
cases to restrict access to information collected by revenue authorities. Article
9(2) embodies this approach by providing that the Requested State may provide
the Requesting State with non-public records. The Requested State retains
"discretion (to) deny a request pursuant to this paragraph entirely or in part."
I would appreciate your Excellency confirming that the understanding
described above is also the understanding of the Government of Belize.
Accept, Excellency, the assurances of my highest consideration.
Embassy of the United States of America
Belize City, September 18, 2000.
2
MINISTRY OF FOREIGN AFFAIRS
P.O. Box 174
New Administrative Building
Belmopan, BELIZE, C.A.
Tel: (501) 8-22322 / 22167
Fax: (501) 8-22854 E-mail: belizemfa@belize.gov.bz
Our Reference: FA/BR/ 17/6/00(47)
Note No. 498
The Ministry of Foreign Affairs presents its compliments to the Embassy of the United States of
America in Belize and has the honour to acknowledge receipt of Note No. 032 of 18 September,
2000, which reads as follows:
"I have the honor to refer to the Treaty on Mutual Legal Assistance in Criminal Matters
between the Government of the United states of America and the Government of Belize ("the
treaty") and to express the understanding of the United States regarding the application of
the treaty to criminal tax matters.
Article 1(1) of the Treaty provides that assistance may be granted in connection with "the
investigation, prosecution, and prevention of criminal offenses, and in proceedings related
to criminal matters."
During the negotiations, the United States delegation was asked whether these provisions
could be interpreted to exclude assistance under the treaty for civil and administrative income
tax matters that are unrelated to any criminal matter. The United States delegation agreed
that the provision could be so interpreted, and confirmed that the United States does not
intend to seek assistance under the treaty in the routine civil and administrative enforcement
of our income tax laws, including the regulation, imposition, calculation and collection of
such income taxes.
I have been advised by the Tax Division of the United States Department of Justice that
criminal tax cases in the United States always involve a voluntary and intentional violation
of a known legal duty. Under United States law, this standard entails willful conduct and
would not be met where a defendant has acted negligently or carelessly. Moreover, to
establish the required level of willful conduct under United States law, the Government
prosecutor must show that the defendant took affirmative action, the likely effect of which
was to mislead or conceal. Examples of such willful activity include keeping a double set
of books, making false entries or alterations to financial records, or concealing assets or
covering up sources of income.
Further, although the treaty has no general dual criminality requirement, my Government
understands United States and Belizean law to be consistent with respect to criminalizing
willful, fraudulent misconduct by private persons in representations to the Government. As
a result, the conduct underlying a United States Government request to Belize for assistance
in a criminal tax evasion case would in all likelihood also be criminalized under the law in
Belize.
Finally, Article 9 of the treaty has additional provisions that are relevant when a Party
requests Government records in a criminal taxation matter. The law and policy of both the
United States and Belize recognize the need in many cases to restrict access to information
collected by revenue authorities. Article 9 embodies this approach by providing that the
Requested State may provide the Requesting State with non-public records. The Requested
State retains 'discretion (to) deny a request pursuant to this paragraph entirely or in part.'
I would appreciate your Excellency confirming that the understanding described above is also
the understanding of the Government of Belize.
Accept, Excellency, the assurances of my highest consideration."
The Ministry of Foreign Affairs of Belize has the honour to confirm that the understanding described
above is also the understanding of the Government of Belize.
The Ministry of Foreign Affairs of Belize avails itself of this opportunity to renew to the Embassy
of the United States of America in Belize the assurances of its highest consideration.
EMBASSY OF THE UNITED STATES OF AMERICA 22 SEPTEMBER, 2000
BELIZE CITY
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