The British government’s plan to “take back control” of its waters after leaving the EU is about to be challenged by a claim from Denmark that its fishermen have a historical right to access to the seas around Britain dating back to the 1400s.
Officials in Copenhagen have mined the archives to build a legal case that could potentially be fought in the international court of justice in The Hague, although officials hasten to say that this is not their intention.
Denmark is seeking a Brexit deal that recognises the right of its fleet to continue to exploit a hundred shared stocks of species such as cod, herring, mackerel, plaice and sand eel.
Officials say 40% of Danish fishermen’s annual take is from waters within the 200-nautical mile exclusive economic zone around Britain, over which the UK may seek to impose greater control when it leaves the EU. Some of Denmark’s coastal communities are almost entirely economically dependent on access to UK waters.
The development suggests that leaving the EU will not reap the dividends promised by prominent leave campaigners, including the foreign secretary, Boris Johnson, who has claimed that the union’s “crazy” common fisheries policy has halved UK employment in the industry.
The Danish position is likely to be mirrored by the seven other member states who will be affected if the UK seeks to limit access to its waters to EU fleets after 2019, it is understood.
Denmark’s foreign affairs minister, Anders Samuelsen, told the Guardian the issue was crucial to many communities in Denmark and that they would be making their case through the EU’s chief negotiator, Michel Barnier.
“Danish fishermen have historically been fishing across the North Sea. The common fisheries policy in the EU has regulated this, based on historical rights and preserving our common stocks that don’t follow economic zones,” he said.
“Clearly, this is very important for many fishing communities especially along the Jutland coast, and we all put our full support behind the EU’s negotiators to find the best way forward.”
The issue took on added urgency for Europe’s fishing communities last October, when the UK’s fisheries minister, George Eustice, promised British fishermen, who have long claimed to have suffered under the EU’s common fisheries policy, hundreds of thousands tonnes of more fish when the UK leaves the union.
About a third of the catch of all European fishing fleets is from British waters. The industry estimates that a loss of access would lead to a reduction of about 50% in European fleets’ net profit and the loss of 6,000 full-time jobs.
Copenhagen plans to point to the UN convention on the law of the sea, which instructs states to respect the “traditional fishing rights” of adjacent countries within sovereign waters. The UK and Denmark are both signatories.
The so-called London convention on fisheries, which European states including the UK and Denmark signed in 1964, also recognises historical rights of access to the waters of the UK.
The Danish government also believes the quota system in the common fisheries policy provides evidence of historical rights, given they are based on traditional fishing patterns.
Niels Wichmann, the chief executive of the Danish fishermen’s association, which holds a place on the Danish ministry of food’s Brexit taskforce, said: “We have a common sea basin where we can fish. We have always had that.
“The British claim of getting back your waters is a nonsense, because you never had them. Maybe for oil or gas but not for fish.”
Wichmann also said the EU should threaten to block the sale of British fish on the continent unless the UK sticks to the status quo on access and quota shares, a position shared by the European parliament’s fisheries committee.
The Danish MEP Ole Christensen, who sits on the committee, said: “If, and I am really not hoping for this, UK and EU27 does not reach an agreement, it would be terrible for both parties.
“If we are not able to fish in UK waters and the UK cannot export their catch to the EU27, it will hurt everyone, not least the people who make their living in the sector. For the sake of everyone, we need to keep an open mind and work on getting a fair deal.”
Only around 11,000 people are directly employed in fishing in the UK, but Britain’s trawlermen were among the most vocal critics of the EU during the referendum, fuelled by frustration over controls on fishing quotas, which have been blamed on Brussels.
A flotilla on the Thames, led by Nigel Farage, proved to be one of more memorable moments of the referendum campaign.
Peter Bone, the MP for Wellingborough and a prominent leave campaigner, said the British government should continue to fight for the rights of the country’s fishing industry.
“Under international law these waters are British waters. Am I sorry for Danish fishermen? Not particularly, no. I am actually sorry for the British fishermen who lost out when we gave our waters away so disastrously in 1973 when we joined the EU.”
Ukip’s fisheries spokesman, Mike Hookem MEP, said: “For me, the fact that some EU nations are preparing to take the UK to court over fishing rights highlights just how much of our marine resources have been stolen during 40 years of the EU’s common fisheries policy.”
The amount of fish that can be taken from the seas around EU member states is set each year under the policy on the basis of scientific advice to ensure sustainability. Within the total take, quotas based on the fishing activities of member states during a five-year period in the 1970s are enforced.
The UK has never formally challenged the quotas, and Danish officials have told the Guardian they believe historical fishing patterns which should be respected at a time when fish stocks in EU waters have rarely been in a healthier state.
Gerard van Balsfoort, the chair of the European Fisheries Alliance, formed last month to represent the industry in the coming Brexit negotiations, said: “One of our big cards, to play and the Danes have it as well is to say: ‘Listen guys, we have buried our fishermen for hundreds of years in your graveyards in Scotland and England. Now you come and tell us we are not allowed to go into the herring grounds? Is that what you are trying to tell us?’”
Van Balsfoort also said he had sought reassurance at a meeting last week with David Jones, a Brexit minister, but had concluded after his discussion that the UK was set on tearing up the old agreements. “He didn’t want to reassure me. I was a bit shocked,” he said.
“If you really go for big changes, access and sharing, and that is apparently what a large part of the industry wants, perhaps also the UK government, then it gets really confrontational.
“The cake is the cake. If the UK wants more part of the cake by prohibiting access, renegotiating shares, it will come off our shares. It could lead to many years of non-collaboration and in the end that is to the detriment of the fish stocks.”
A British government spokesman said: “We recognise the importance of our fishing industry and leaving the EU is a real opportunity to review fisheries management in the UK.
“As we begin exit negotiations we will be looking closely at current international fisheries agreements in place and will be working hard to achieve the best possible deal for the whole of the UK fishing industry.”
