“UNCLOS Is Outdated, while the Issue of Illegal Flag Use in Vessel Registration is on the Rise”: Interview with the Heads of DENUO’s Transport Practice

Anna Antonova,

Counsel, Denuo

On Choosing a Professional Path

Anna Otkina (hereinafter referred to as AO): My journey into transport law began 23 years ago, when I flew to Surgut to assist our client, Bombardier Business Aircraft, with the sale of a business jet to a Russian client. The transaction went smoothly, and I realised it was the experience to continue on. Back then, it was a newly emerging legal niche since foreign aircrafts were only beginning to be introduced to the Russian market.

My choice of specialisation was driven by two factors: on the one hand, I was guided by strategic foresight; on the other, it was love at first sight.

Anna Antonova (hereinafter referred to as AA): I entered the profession in 2011, while still a student at the Kutafin Moscow State Law University, taking up a position at a major international law firm. Yet I took my first steps in law in a completely different field of intellectual property and technology law.

A pivotal moment came in 2013, when I joined Anna Otkina’s transport team at the firm. After collaborating with Anna on projects outside the transport sector, we realised that we’d really clicked and felt completely at ease working together.

Just then, a major case on the construction of seagoing vessels was getting underway. I was invited to come on board, and I accepted.

Top Client Queries in Maritime Law

AO: Our practice is principally engaged in matters concerning the financing of the acquisition and construction of transport assets (whether seagoing or aircraft vessels). Once the sanctions were tightened in 2022, the transport sector was forced to undergo major shifts.

Meanwhile, the aviation industry was stagnating, whereas the market for seagoing vessels was, on the contrary, booming. This trend was largely due to foreign vessels becoming unavailable for charter to Russian parties almost overnight. This circumstance forced Russian shipowners to purchase extra vessels and prompted major export producers to establish their own fleets to transport goods to global markets.

As a result, the scope of maritime law projects has expanded considerably. Besides asset-financing advice, clients became increasingly likely to seek advice on structuring fleet ownership and management, selecting jurisdictions for vessel registration, and analysing time-charter and carriage contracts.

A distinct area that has emerged within our practice is securing the release of vessels that had been placed under arrest in “unfriendly” countries due to sanctions.

The Role of Lex Maritima in the Harmonisation of Maritime Law

AA: Up until 2025, the field of maritime law lacked a single, consolidated body of fundamental principles akin to the UNIDROIT Principles of International Commercial Contracts under Lex Mercatoria. This makes the decade-long work of Professor Erik Van Hooydonk particularly noteworthy. Working with experts from 17 countries, he examined the national legal frameworks in order to codify the common principles underlying global maritime law.

It is reassuring to see that, at last, such fundamental issues as the sources of maritime law; the status, ownership and management of vessels; the liabilities of shipowners, managers and operators; maritime contracts; maritime incidents; and maritime claims have been systematically set out in a unified body of written rules and principles.

Despite its considerable length, the CMI Lex Maritima is neatly organised, making it easy to find guidance on specific topics, and the Principles are articulated in a clear and accessible manner. This document will undoubtedly improve legal certainty, something which is often lacking yet crucial for adjudicating and avoiding disputes in maritime law. A good example is the shipowners’ limitation of liability regime, where courts in different jurisdictions take varying views on the circumstances that justify depriving a shipowner of the right to limit liability. This results from maritime incidents typically entailing damage, and from the fact that national regulation in such cases is often substantially mandatory.

Therefore, harmonising the rules in this field at the international level may prove exceedingly complex and time-consuming. In this context, it would be helpful if international organisations (CMI, IMO) and maritime professional associations were to prepare soft-law principles for interpreting the criteria of “wilful misconduct” and “gross negligence” when determining a shipowner’s liability. Such principles, along with an effective mechanism for incorporating them into domestic legal systems, would provide a greater level of legal certainty than harmonisation itself, or the absence thereof.

Emerging Challenges to the Freedom of Navigation

AO: The freedom of navigation is regulated primarily by the United Nations Convention on the Law of the Sea (UNCLOS), which sets out the principle of freedom of navigation on the high seas and in straits used for international navigation. Over time, certain provisions of UNCLOS have become somewhat outdated and may no longer fully address the modern challenges arising from an increasingly fluid geopolitical environment.

This issue is relevant in the context of ships passing through the Danish Straits, which are of strategic importance to international trade. Recently, the Baltic and Northern European countries have been striving to restrict the passage of vessels belonging to the so-called “shadow” fleet used to export Russian oil in bypass of European sanctions. The authorities argue primarily that the straits are exceptionally narrow and that the technical condition of many “shadow” fleet vessels, combined with heavy traffic, could trigger maritime incidents and an environmental disaster.

UNCLOS enables coastal states to put in place preventive measures to prevent pollution and to carry out “environmental control measures”, so long as these do not impair the freedom of navigation.

That said, a vessel may only be inspected if there is adequate evidence of a violation.

Overall, UNCLOS sets out clear and robust rules on maritime navigation, helping to prevent states from facing politically motivated maritime blockades. Nonetheless, it is essential to ensure that UNCLOS States Parties comply strictly with the Convention’s provisions and do not interpret them expansively in a way that breaches the principles of international law.

What the Transport Sector Is Struggling With Today

AA: Recently, an increasing number of seagoing vessels with Russian ties have found themselves subject to sanctions introduced by the US, the EU or the UK.

This has left shipowners struggling to find foreign registries willing to register such vessels, with many refusing for fear of potential sanctions or other adverse consequences. This context has led to an increase in the illegal use of flags, with vessels flying a state’s flag without its consent or knowledge.

The problem of fraudulent ship registration is by no means new. The international community took note of it back in 2015, when a fraudulent registry claiming to act for Micronesia was uncovered. The authorities of Congo, Fiji, Samoa, Vanuatu and the Maldives have all reported similar issues. However, this problem has grown dramatically in recent years. From our experience, the number of countries whose flags are being used illegally is likewise on the rise. In view of the above, more appealing conditions should be offered for registering vessels in the Russian International Ship Register (RMSR) by improving tax terms for shipowners, speeding up registration procedures and rolling out electronic document workflows. ■