Sir Bob Jones' assumption that the driving consideration behind the whaling debate is the physical size of the animal is mistaken. What the debate is about is the size of the species, the size of the loopholes through which they are hunted, and the inconsistencies we adopt when pushed.

First the size of the species. There were 76 species of whales, there are now 75. The last one to go extinct was the Chinese River dolphin in 2007.

Of remaining species, the numbers range in the tens, to the hundreds, to the thousands.

With the largest, the Blue Whale, the Southern Hemisphere had a population of around 250,000 at the turn of the 20th century and has around 2,300 in the 21st century. With such a population size, the concern is how close they are to extinction.


Of the more abundant whales, such as the minke, estimates range so wildly that there is no agreed estimate in the Southern Hemisphere. In this context, the concern is the size of the scientific uncertainty.

The second issue is criticism of South Korea. It was not based on the considerations of the cruelty of hunting whales. Rather, it was based on the justification of the action and the method by which it would be achieved.

South Korea suggested that a cull was necessary because the whales were consuming too many fish that would be better served to hungry people. Japan, the originator of this thesis, has gone so far as to suggest that total food consumption by cetaceans is three to six times the worldwide marine commercial fish catch.

This type of approach where natural processes are used as scape-goats for human caused problems is poor. It is poor in political terms because it wilfully overlooks the real causes of the over-exploitation of most of the world's fish stocks, namely, overfishing, overcapacity and lack of adequate international mechanisms.

It is poor in scientific terms because it is a simplistic assumption that runs directly contra to the complexity of the food webs that operate in the ocean.

The second reason the South Korean action was not welcomed is that they were attempting to use the exception within the convention governing this area that allows each country to set its own quota for the purpose of science.

This ability for a government to set its own 'special permits' was standard in the middle of the 20th century when the convention was drafted. It was never envisaged that it would become a loophole through which international conservation efforts could be defeated.

Since the moratorium on commercial whaling was agreed in 1982, a number of countries have actively exploited this gap, with some countries like Japan taking around 10,000 whales over a 25 year period.

Australia is challenging Japan over this matter at the International Court of Justice. The risk in the court case is much larger than the number of whales caught.

At the lower level, the risk is that conservation arrangements like whale sanctuaries can be gutted from the inside.

At the middle level, the risk is that all of the exceptions found within comparable international environmental law - such as those for military purposes, indigenous peoples and science - lose any form of international oversight as each nation determines its own limits.

At the highest level, there is the possibility that the value of science - the building block of international cooperation in global environmental matters - becomes completely degraded.

Where Sir Jones is correct is over the necessity to be consistent in our approach to welfare standards. Surprisingly to most, New Zealand has been at the forefront of many of the international efforts at the Whaling Commission to make the killing of whales more humane.

This is due to our experiences gained from whale strandings and the necessity to sometimes euthanize these animals.

Our contribution in this area has been with the phasing out of the secondary killing method of the electric lance which after over 100 years of use was shown to be increasing, not decreasing, pain before death.

However, limited improvements have been made in other areas such as with the hunting of whales by some indigenous communities using traditional methods. Their killing commonly record a time to death, from the whale being first struck to finally expiring, of 30 to 60 minutes. Worst examples are over 11 hours.

As with all welfare standards for animals, the question should not be who is killing or keeping them, or for what reason, but can the pain inflicted and their suffering be brought down to the lowest possible level?

Our ethical reasoning as the only species that can think and act about such considerations, should be based on nothing less.

Alexander Gillespie is professor of law at the University of Waikato. His latest book is Conservation, Biodiversity and International Law.