Kan kommunen gå över gränsen?

Sammanfattning: In recent decades society has changed towards becoming increasingly internationalized and globalized. This development has altered the prerequisites for municipal operations. The municipalities are increasingly acting internationally. There is now expressed political support for municipalities to be allowed to engage in international activities. However, the extent to which municipalities are allowed to act internationally is not apparent. The municipalities’ capacity to act internationally is limited by the fact that municipalities are not allowed to engage in foreign policy, because foreign policy is part of the government’s exclusive responsibility to govern the country according to Chapter 1 § 6 of the Instrument of Government, and the thereto associated responsibility for Sweden’s international relations according to Chapter 10 of the Instrument of Government. The essay aims to examine and discuss the limitation of the municipalities’ competence, which is constituted by the fact that municipalities are not allowed to engage in foreign policy. The aim is fulfilled by answering two research questions: 1. What makes municipal actions foreign policy in legal sense? 2. Is the restriction that municipalities may not engage in foreign policy an appropriate way to regulate the municipalities’ international cross-border involvements? The answer to the research questions are sought through the legal dogmatic method and the material that the legal dogmatic method recognizes. The term foreign policy is not defined in Swedish law. The essay therefore examines the reasons why some selected municipal international cross-border involvements are considered to constitute or not constitute foreign policy. The involvements that are considered to constitute foreign policy are acts of war and military cooperation, international aid and boycotts and sanctions. These engagements have in common that they involve a risk of conflict with the government’s foreign policy and a risk of affecting Sweden’s international relations negatively. However, there are also international cross-border involvements that are in line with the government’s foreign policy, which still constitute foreign policy. Conflict with the state’s foreign policy is therefore not a necessary prerequisite for a municipal international cross-border involvement to constitute foreign policy. The commitments that do not constitute foreign policy are twinning agreements, cross-municipal cooperation, European Groupings of Territorial Cooperation, regional offices for EU affairs and municipal service export. These engagements all have in common that they are of a clear municipal nature, which should be understood as meaning that the measures they include would probably be regarded as within the municipalities’ competence if they took place within the municipality’s territory. Furthermore, they can all be considered beneficial, either for the municipality or for the state. What is also common is that all the engagements that do not constitute foreign policy normally lack the characteristics that are common for engagements that constitute foreign policy. However, some of the engagements could involve such sensitive aspects that they pose a risk of having impact on Sweden’s international relations. This essay state that the legislation extending the municipalities competence and the EU-legislation does not have independent significance regarding making a municipal involvement foreign policy in legal sense. Nor does the municipal nature and benefit for the society, which are common denominators for engagements that does not constitute foreign policy, have such in-dependent significance. The first conclusion of this essay is that an action constitutes foreign policy in a legal sense if the actions for some reason impose a risk of having negative impact on Sweden’s international relations. What makes an action so sensitive it imposes such risk for Sweden’s international relations is affected by societal development and changes in the outside world. The second conclusion of this essay is that the limitation, that municipalities may not engage in foreign policy, is suitable in regards to its content. How-ever, the meaning of the restriction that municipalities may not engage in foreign policy is not entirely clear, which risk leading to consequences both for municipalities and the government. It would therefore be appropriate to clarify the meaning of the restriction, even if the restriction itself should remain.