Small Fry

Last week, the oral hearings in the EU-UK Sandeel case were concluded before the Permanent Court of Arbitration (PCA) in The Hague. This marks the first time in which a dispute between the EU and UK under the 2021 Trade and Co-operation agreement (TCA) reaches the stage of arbitration, testing the post-Brexit legal framework in a case where the UK’s regulatory autonomy to adopt unilateral measures for the protection of the marine environment is pitted against the EU vessels’ right to access and fish in British waters.

The dispute concerns the 2024 UK measures banning all sandeel fishing in the English waters in the North Sea and in all Scottish waters. According to the UK, the main aim of these measures is to increase the availability of sandeel and thus, in turn, to improve the resilience of marine species that rely on them (such as puffins) for the benefit of the wider marine ecosystem. While UK boats had not been allocated any sandeel fishing quotas since 2021, last year’s measures affected EU vessels – and primarily Danish ones which hold over 96% of the EU sandeel fishing quota in UK waters.

The EU questioned the compatibility of the British measures with the TCA and in April 2024 it requested consultations with the UK. Since no mutually agreed solution was reached, the EU proceeded with a request for the establishment of an arbitration tribunal under the dispute settlement mechanism of the TCA.

In a nutshell, the EU argues that the British sandeel fishing prohibition violates the TCA since: a) it is not based on “the best available scientific advice” under Art. 496(1) and (2) TCA; b) it is not a “proportionate and non-discriminatory” fisheries management measure under Art. 496(1) and (2) TCA; and c) it is inconsistent with the UK’s obligation to grant EU vessels “full access to its waters to fish” under Art. 2(1)(a) of Annex 38 TCA.

Politically, the stakes are high. Fishing featured prominently in the Brexit campaign with promises to “take back control” of British waters. Furthermore, the dispute could be a stumbling block to the current British government’s efforts to reset the EU-UK relationship post-Brexit and it compounds the difficulties of renegotiating fishing access before the expiry of the TCA fisheries chapter in June 2026.

Legally, this is a complex case. It involves not only the interpretation of the TCA in light of relevant rules of international law (31 (3)(c) VCLT) but also highly technical questions such as clarifying the parameters for evaluating what amounts to “best available scientific evidence” as well as the role of the precautionary approach in the context of fisheries management and its relevance in the interpretation of “best available scientific evidence”. This is a key issue – and one that is likely to also arise before international courts currently dealing with high-profile climate change litigation cases, such as those pending before the ICJ and the IACtHR. For this reason, this blogpost will elaborate on this point on the basis of the parties’ written submissions and the arguments made before the panel of arbitrators.

The broad lines

While the starting point of both parties is that the case should not be seen as one of “trade vs fish”, different interpretations of the core of the dispute were proffered. The EU argued that the case should not be perceived as an effort on its part to maximize access to fishing opportunities at the expense of marine diversity. While acknowledging that the TCA allows for unilateral restrictions on access to fisheries resources, the EU contended that, in casu, the UK’s measures are inconsistent with its obligations under the TCA. The UK’s agents, on the other hand, stressed the regulatory autonomy aspect of the TCA when it comes to the management of fisheries resources (494(3)(f) TCA) and argued that the case should be seen through the lens of “fishing in somebody else’s waters”.

The “best available scientific advice” and the precautionary approach

Whether the UK measures banning sandeel fishing were based on the “best available scientific advice” and the relevance of the precautionary approach to fisheries management in interpreting the term are of crucial importance. Under Art. 494(3)(C) and 496(2) TCA a party may adopt conservation and fisheries management measures applicable to its waters so long as such measures are based on the best available scientific advice.

The EU’s argument is two-fold: (a) It argues that the UK’s measures are not based on the best available scientific advice and (b) that the measures are not actually based on the best available scientific evidence.

In relation to (a): Since best available scientific advice is not defined under the TCA, the EU relied on the ordinary meaning of the term (31(1) VCLT) and on its interpretation in the context of WTO law (as per 31 (3)(c) VCLT) to argue that best available scientific advice should be understood as peer-reviewed advice stemming from the most recent available scientific data derived from methodologically rigorous methods taking into account the parties’ obligation to co-operate in the acquisition of the relevant data (EU written submissions, paras. 404-466). In this light, the EU argues that the scientific advice on which the UK’s measures are based lack the requisite scientific and methodological rigour. This is the case since, according to the EU, the only piece of advice justifying a full closure of UK waters emanates from modelling conducted by a national body that contains several assumptions and caveats that deprive it of the methodological rigor necessary to be considered “reputable science”. (EU written submissions, paras. 477-491).

In relation to (b): The EU claims that, in any case, the UK measures were not properly based on the best available scientific advice since no rational or objective relationship exists between the scientific advice invoked by the UK and the full closure of UK waters to sandeel fishing. (EU written submissions, paras. 492-451). In essence, the EU argues that a partial closure of UK waters could have achieved the environmental effects intended by the UK.

The EU acknowledges that the precautionary approach is relevant in the context of adopting fisheries management measures. At the same time, it argues that the material conditions for its application have not been fulfilled in casu since the application of such an approach is contingent on the absence of “adequate scientific information” as per Art. 495 (1)TCA (EU written submissions, paras. 326-338).

The UK’s counterarguments are as follows. In relation to (a): The UK argues that the closure of its waters is based on the best available scientific evidence and that the standard of interpretation of the term put forward by the EU is too stringent. Relying on the ordinary meaning of the term (31(1) VCLT) and on relevant rules of international law applicable between the parties (31 (3)(c) VCLT)) the UK claims that 496(2) TCA must be interpreted to mean measures based on the best available scientific compared to other available scientific advice, rather than measures based on the best possible scientific advice given unlimited time and resources (UK submissions, paras. 203, 208). In any case, the EU has failed to identify any evidence on the subject that it considers to be better than the one relied on by the UK (UK submissions, para. 252). The UK also takes issue with the type of scientific evidence that the EU considers necessary to base measures such as those at hand. Following the EU’s interpretation only science which produces quantifiable results on the basis of large amounts of data constitutes scientific advice – something that is not supported by the text of the TCA or relevant practice (UK submissions, paras. 211, 289-295).

In relation to (b): The UK argues that its measures were based on the best available scientific advice. This is the case since, upon proper interpretation, “to base a measure upon” scientific advice does not require that that advice alone is the sole consideration underpinning the measure and that other factors may be taken into account in the decision-making process (UK submissions, paras.215-225). In any case, the EU failed to prove that a partial closure of the British waters would have achieved the ecosystem benefits that the UK measure intended to achieve (UK submissions, paras. 295-296).

In relation to the precautionary approach, the UK contends that this does not constitute a separate stage in assessing the lawfulness of fisheries management measures under the TCA. Rather, the precautionary approach informs what amounts to basing measures on “best available scientific advice” in the context of a particular case (UK submissions, paras. 303-307). On the basis of the ordinary meaning of the concept (31(1) VCLT) and on relevant rules of international law (31 (3)(c) VCLT), the UK contends that the precautionary approach is to be relied on in cases where there is lack of full scientific certainty, which is the case in the situation at hand – thereby justifying the adoption of the measures (UK submissions, paras. 305-310).

Comments

Much will depend on what the relevant interpretative legal context is (31(1) VCLT). The EU claims that scientific advice must have methodological rigour, be peer-reviewed and mainly data-driven – language inspired by the WTO jurisprudence. It is questionable, however, whether international economic law amounts to “relevant rules of international law” for the purpose of interpretation in the specific context of fisheries management. In interpreting “scientific research” under the International Convention for the Regulation of Whaling (ICRW), the ICJ in the Whaling case rejected the notion that scientific research needs to meet particular characteristics or be peer-reviewed (Whaling case, paras. 84-86).

Furthermore, the EU’s take on the precautionary approach which it seems to treat as a separate consideration, rather than part of the relevant interpretative context, is unsupported by the text of the TCA (Art. 494(3), 495(1), 496(1) TCA) and relevant jurisprudence. The 2024 International Tribunal for the Law of the Sea (ITLOS) Advisory Opinion on Climate Change and International Law clarified that the precautionary approach informs what amounts to “best available science” in the context of conservation and management measures under the United Nations Convention on the law of the Sea ( UNCLOS) (ITLOS Advisory Opinion, para. 428).  In a similar vein, interpreting 495(1)(b) TCA that the precautionary approach can only be invoked in cases where there is absence of relevant scientific information, as per the EU’s claim, is problematic. The extreme version of this argument would negate the application of the precautionary approach simply by the production of some relevant scientific evidence rather than inconclusive evidence.

At the same time, the UK’s insistence on placing a comparative test at the core of interpreting what amounts to best available scientific evidence is not without challenges. In essence, the UK here argues that in lieu of another, better advice having been produced by the EU, its own advice should be considered as “best available scientific advice” within the meaning of the TCA. This argument however neglects the fact that, even in the absence of other evidence, scientific evidence could be fundamentally flawed and fall off the spectrum of “acceptable science” on its own merit.

The arbitral tribunal’s decision in expected in April 2025.