Seabirds, dolphins, and porpoises can “breathe a sigh of relief” as campaign groups and conservationists celebrate both a ‘win for the ocean and a win for sandeels’ following a ruling to dismiss challenges to Britain’s ban on sandeel fishing in the North Sea last week.

An arbitration court in The Hague ruled that bans imposed by the UK and Scottish governments were “based on the best available science” and not discriminatory to EU vessels, in line with the UK-EU Trade and Cooperation Agreement.

Judges at the Permanent Court of Arbitration based in The Hague ruled there is no legal obligation to reverse the closure order after the EU claimed the move was ‘discriminatory and disproportionate’, and could threaten the future of commercial sandeel fishing in Denmark.

Granular details within the case have left all parties claiming a victory, however, as the Court did rule against the UK on the grounds that the English process did not give due regard to the economic interests of the EU in its consultation process.

The UK did, however, win on three of the four grounds, including in support of the total closure of the North Sea’s Scottish waters, and the Government is confident the ban will remain in place across the UK. The UK has said it will undertake a process ‘in good faith’ to remedy the ruling against English waters in the North Sea.

“This might be a loss on paper for the UK, but it’s a win for the ocean and a win for sandeels,” said Alex Taylor, Oceana UK’s director of policy and research. “This ruling makes clear that the UK was right to act on science in banning sandeel fishing from our waters and didn’t discriminate in the process of doing so.”

Sandeels, a small fish and an important food source for marine wildlife are widely recognised as a mainstay for our seas, providing an essential source of protein for species ranging from puffin to pollack, and kittiwakes to cod.

In early 2024, the UK and Scottish governments introduced a ban on sandeel fishing in Scottish waters and English waters of the North Sea in a move conservationists hailed as critical for saving the UK’s globally important seabird colonies. They are not caught for human consumption but are made into fishmeal and oil used for animal feed.

In April last year, the EU – in support of Denmark – launched dispute proceedings to challenge the closures. By October, the EU referred the challenge to an arbitration tribunal under the post-Brexit Trade and Cooperation Agreement.

The dispute centred on whether the UK’s right to restrict trawlers for conservation reasons unnecessarily restricts agreed EU fishing rights. In its submissions to the court, the EU argued the geographical scope of the ban is not justified by the scientific modelling on stock levels, or the “economic and social impacts” on Danish fishing communities.

In response to this, however, the UK defended the scientific advice behind the ban, adding that the EU had failed to point out “any superior model” available at the time. 

The report from the Arbitration Tribunal found that the UK successfully demonstrated that the measures taken to close English and Scottish waters were based on the best available science and had sufficient regard to the principle of non-discrimination.

It also found that the measures to close Scottish water in the North Sea were taken with sufficient regard to the principle of proportionality. 

Tom Ash, marine senior policy officer at Wildlife and Countryside Link, said: “The UK’s defence of the sandeel fishing closure is an important moment for marine conservation that the Government should be proud of. We welcome the tribunal’s decision, which demonstrates that the UK Government had conservation science on their side and can keep waters closed.

“Protecting sandeels is essential for the survival of puffins, kittiwakes, and other iconic seabirds already in steep decline along with porpoises and whales. We welcome the UK’s commitment to science-led policy that puts the health of our seas first, and call on EU counterparts to match this ambition. The health of our shared seas depends on collaborative action that prioritises long-term sustainable ocean health over short-term industrial interests.”

Regarding the count that went against the UK – that it did not have sufficient regard to the principle of proportionality during the its decision-making process to close English waters to sandeel fishing – the Government has said it will undertake a process in good faith to bring the UK into compliance.

It has made clear, however, that there is no legal obligation for the UK to reverse the closures while the compliance process takes place, and the report does not indicate that compliance must require reversing closures.

A UK government spokesperson said: “We remain committed to protecting our seabirds and the wider marine environment, in accordance with our commitments to the TCA and other international agreements.

“Disputes and the use of resolution mechanisms are a normal part of a mature relationship with international partners. We will continue to act in the national interest as we work towards a strong and lasting partnership with our European neighbours.”

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