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Section II.—Luxemburg (Art. 40 to 41)

Article 40.

With regard to the Grand Duchy of Luxemburg, Germany renounces the benefit of all the provisions inserted in her favour in the Treaties of February 8, 1842, April 2, 1847, October 20–25, 1865, August 18, 1866, February 21 and May 11, 1867, May 10, 1871, June 11, 1872, and November 11, 1902, and in all Conventions consequent upon such Treaties.

Germany recognizes that the Grand Duchy of Luxemburg ceased to form part of the German Zollverein as from January 1, 1919, renounces all rights to the exploitation of the railways, adheres to the termination of the régime of neutrality of the Grand Duchy, and accepts in advance all international arrangements which may be concluded by the Allied and Associated Powers relating to the Grand Duchy.

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Note to III, 40

The treaties under which Germany renounced benefits were:

  • February 8, 1842, accession of Luxembourg to the Zollverein, signed at The Hague (Martens, Nouveau recueil général de traités, ii, 60; 31 British and Foreign State Papers, p. 1352);
  • April 2, 1847, convention prolonging accession to the German Customs Union, signed at The Hague (37 British and Foreign State Papers, p. 806; Martens, op. cit., x, 491);
  • October 20, 25, 1865, treaty renewing accession to the Zollverein, signed at Berlin October 20 and at Luxembourg, October 25 (Paul Ruppert, Le Grand Vuchć de Luxembourg dans ses relations internationales: Recueil des Traités … p. 367);
  • August 18, 1866, offensive and defensive alliance creating the North German Confederation (Martens, op. cit., xviii, 476; 56 British and Foreign State Papers, p. 1038);
  • February 21, 1867, declaration effected by exchange of notes with Belgium concerning civil rights, signed at Luxembourg (Ruppert, op. cit., p. 547);
  • May 11, 1867, treaty concerning the neutralization of Luxembourg, noted below;
  • May 10, 1871, treaty of peace between France and Germany, signed at Frankfurt, bearing upon relations with the Zollverein; additional article 1, section 6, transferred to Germany the interests of the Compagnie des Chemins de Fer de l’Est in the Wilhelm-Lux-embourg railways (62 British and Foreign State Papers, p. 77);
  • June 11, 1872, convention on the exploitation of the Wilhelm-Luxem-bourg Railway, signed at Berlin (Ruppert, op. cit., p. 105);
  • November 11, 1902, treaty with Germany, concerning the Wilhelm-Luxembourg railway, signed at Berlin (95 British and Foreign State Papers, p. 780).

The Grand Duchy of Luxembourg, a unit of the Germanic Confederation in 1815, was a member of the German Zollverein from 1842 until December 31, 1918, and its economy was in consequence, to a great extent, a part of the German economy. Overrun by the German Army on August 4, 1914, at a period when the Government was pro-German, both the territory and Government during the course of the war of 1914–18 were within the German system of control. Luxembourg was not deemed to be at war by either the German Empire or the Allied and Associated Powers and did not take part in the Paris Peace Conference, which, however, heard its representatives before defining the German position toward the Grand Duchy.

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The provisions of the treaty took cognizance of Luxembourg’s membership in the German Zollverein, the form of its neutralization in virtue of the treaty of 1867, and the recent accession of Grand Duchess Charlotte following the abdication of her pro-German sister on January 15, 1919.

Luxembourg was an independent duchy in the Middle Ages and was later a part of southern Netherlands, was constituted a separate political entity in 1815 as a grand duchy in personal union with the Netherlands, and finally became an independent state in 1839. It was a member of the Germanic Confederation at the dissolution in 1866.

The treaty signed by Austria, Belgium, France, Great Britain, Italy, the Netherlands, Prussia, and Russia at London, on May 11, 1867 (57 British and Foreign State Papers, p. 32) declared that the Grand Duchy of Luxembourg would form henceforth a perpetually neutral state, the principle of this neutrality being to “remain under the collective guaranty of the powers signatory to the treaty with the exception of Belgium, which was a neutral state”. This provision was incorporated into the Luxembourg Constitution.

This treaty differed from the treaty of 1839 neutralizing Belgium in that Luxembourg itself was not one of the contracting parties, and the parties entered into a collective guaranty of Luxembourg’s neutrality without a several responsibility for each. When, therefore, Germany as one of the contractants violated the collective pledge, the other contracting states were not obligated to, and did not, come to the direct defense of Luxembourg.

Article 40 would have been more precise if it had referred to the “termination of the regime of neutralization” instead of the “regime of neutrality”, for it was the status of neutralization—that is, a contractual obligation of remaining neutral in case of conflict—which Luxembourg desired to end. It did not intend to forego a policy, appropriate for a small state, of remaining aloof from the conflicts of its neighbors. The application of the Grand Duchy for admission to the League of Nations, made by a letter of February 23, 1920, resulted in a clarification of the position. This letter referred to the provisions of the treaty of 1867 and article 40 of the treaty of peace, and stated that “the people of Luxembourg have the strongest desire to maintain their neutrality, to which they are deeply attached, and which has, up to the present, formed one of the bases of their national life”.

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The request was referred by the First Assembly to the Fifth Committee, which heard the President of the Luxembourg Government. The delegates on November 28, 1920 forwarded a letter confirming verbal understandings that “Luxembourg will accept without any reservations obligations arising from the Covenant of the League of Nations, and in particular from Article 16 of the Covenant” (Records of the First Assembly, Meetings of the Committees, vi, 12). The committee recommended to the Assembly the admission of Luxembourg with the understanding that the Grand Duchy would place its “laws in harmony with the obligations which will be incumbent upon that state as a result of its entering into the League of Nations”. The vote of the Assembly on December 16, 1920 in favor of the admission of Luxembourg was: 38 for; 0 against; 4 abstaining or absent (ibid., p. 586). On April 25, May 20, and June 2, 3, and 13, 1921, Luxembourg addressed letters to the Secretary-General raising sundry questions of detail, to which the Council replied in a letter approved June 21, 1921 (Minutes of the 13th Session of the Council, pp. 21, 171; Official Journal, 1921, p. 707). The substance of the Council resolution quoted to the Luxembourg Government was that the admission of the Grand Duchy into the League of Nations was “final and absolute … Though it is incumbent upon the Grand-Ducal Government to take without delay all necessary steps to bring the Constitution and legislation of the Grand Duchy into conformity with its international obligations, yet there can be no question, from the point of view of the League of Nations, of a provisional status of the Grand Duchy so far as concerns its rights and obligations with regard to the League of Nations during the transitional period up to the completion of the revision of the Constitution. These rights and obligations have been established once and for all by Luxembourg’s entry into the League of Nations.”

Article 41.

Germany undertakes to grant to the Grand Duchy of Luxemburg, when a demand to that effect is made to her by the Principal Allied and Associated Powers, the rights and advantages stipulated in favour of such Powers or their nationals in the present Treaty with regard to economic questions, to questions relative to transport and to aerial navigation.

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Note to III, 41

The German delegation complained that Luxembourg was to continue to “enjoy all the advantages” of the German Zollverein without being a member and demanded reciprocity ( Foreign Relations, The Paris Peace Conference, 1919, vi, 825).

The Allies replied that Luxembourg had itself decided the issue ( ibid., p. 942).

An exchange of notes between Germany and Luxembourg concerning frontier traffic, transit, and trade was effected on December 5, 1922 and in force on February 1, 1923.