The right to talent: the missing element in the modern human rights concept and international legislation
Being a human rights lawyer in my home country I was working within the NPM with disabled people who were living in the special places under the surveillance and maintenance of the state (state authorities). A lot of the wards there are very talented, but unfortunately, they cannot use, promote and develop their talents as ordinary people. Often, state policies with regard to places of detention, where these people live, are extremely narrow and insufficient. Methods, rehabilitation programs, psychological and social support and conditions in general are on very low level and do not take into consideration neither possibilities nor the needs of their wards. And I am talking now not only about my country, but about all post-Soviet countries, South America, Africa and Asia, where such special places still exist on the contrary, e.g, to Scandinavian countries, where such people are fully integrated into society and, I suppose, do not feel a lack of possibilities for self-development.
But for some states it is easier to close people suffering from oligophrenia in places with special facilities and feeding them pills instead of figuring out how to help them discover and use their talents. They give the diagnosis ADHD (attention deficit hyperactivity disorder) to the child who are drawing in the margins during the class instead of solving an equation. Thus, at best, prospective “Dalis” are suffering from math and depressing from lower grades. At worst, dying behind the bars, unknown and miserable.
But what is “a talent”? Is it a component of the freedom of expression, the right to education or the right to development? Or, probably, it is a cultural right?
My target group in this essay is mainly “people with special needs” who are under the care of the state according to the OPCAT.
Obviously, that they have these special needs in respect to their talents as well. Sometimes a person without hands can paint, using his/her mouth or legs, better than you and me. Or he/she could be a professional comedian. Or to have a lot of different talents living without legs and arms, as a famous and the most significant dexterous artist, engraver and magician of XVIII century Matthias Buchinger.
In my practice, I once met a boy with a mental disorder who was learning English by himself because of his motivation ‑ he had a dream to move to Canada and become a florist there. It is worth to say that in that children’s home where he lived there were not even a teacher who could teach him a language, because the Ministry of Education in my country thought that children with oligophrenia and other mental problems are unable to study such difficult thing as a foreign language.
But I should notice that often handicapped people can be twice more popular celebrities than their ordinary prototypes. After my acquaintance with a Finnish punk band Pertti Kurikan Nimipäivät in the one of the human rights documentary film festivals, I understood that the right to talent is something larger than just already mentioned freedom of expression or the right to education.
Furthermore, it is the missing element in all basic relevant international legal instruments such as inter alia UDHR, ICCPR, ICESC etc.
We are declaring equal rights, but are that rights really equal for people with humanitarian and mathematical minds, for healthy people and those with disorders, for children and adults?..
When person discovered her/his talent and started using it in profession – s/he can easily find one's mission through it, thus becoming happier. Which means – the other human rights automatically could be performed. E.g., this person may find a job quicker than others, because when you really like what you do, you become professional in your field. Exercising the right to talent this person can easily be admitted to university, which means that her/his right for education will be also fulfilled.
Moreover, many mental disorders can cause aggression, in these occasions the right of mentally handicapped person to talent might make a healing effect. Changing the national laws and international documents the society could provide better conditions for such people.
The question of the compliance of the right to talent lies in the plane of the change of paradigm. This question is very problematic since there are no deep academic researches on this issue, notwithstanding it becomes to be really important in the modern world. The only one more or less relevant research paper concerning this theme, which I found, is “Disability Human Rights” by Michael Ashley Stein.
Of course, the question of “talent” is interdisciplinary and involve discussions from such areas as medicine, psychology and other social sciences where this issue is quite explored. But from the legal perspective it is still unidentified.
So, my essay is a first step to my further academic research in this field and should be considered, in particular, as a normative project the aim of which is to persuade that the right to talent should be included separately into the international, regional and national legal instruments.
Since there is no any academic research on the right to talent, I have a serious mission to fill this gap.
Thus, I will focus on the main problems caused by the normative absence of the “right to talent”, and highlight the main legal elements of this right, its conjunction with other rights and freedoms, and its role and importance for human rights law.
What is talent
First of all, we should define the object of this research – a talent.
This phenomenon has a lot of synonyms such as: ability, adequacy, calibre, capability, competence, competency, creative thought, efficacy, efficiency, endowment, facility, faculty, flair, forte, genius, gift, high caliber, inspiration, long suit, proficiency, qualification, strength, strong point, strong suit, sufficiency, susceptibility.
The Oxford dictionary determines a talent as “natural or
the identification of gifted and talented children is required under Connecticut special education law (USA). Below I will cite some legal norms from its statutes, which is very important for my further analysis and conclusions.
So, section 10-76a(5) of the state statutes defines “children requiring special education” as follows:
(5) “Children requiring special education” includes any exceptional child who...(B)has extraordinary learning ability or outstanding talent in the creative arts, the development of which requires programs or services beyond those ordinarily provided in the regular school programs but which may be provided through special education as part of the public school program.
The state regulations define “gifted and talented”, “extraordinary learning ability”, and “outstanding creative talent” as follows. Regulations Concerning State Agencies (RCSA) at Sec. 10-76a-2 state:
(b) “Gifted and talented” means a child identified by the planning and placement team as (1) possessing demonstrated or potential abilities that give evidence of very superior intellectual, creative or specific academic capability and (2) needing differentiated instruction or services beyond those being provided in the regular school program in order to realize their intellectual, creative or specific academic potential. The term shall include children with extraordinary learning ability and children with outstanding talent in the creative arts as defined by these regulations.
(a) “Extraordinary learning ability” means a child identified by the planning and placement team as gifted and talented on the basis of either performance on relevant standardized measuring instruments, or demonstrated or potential achievement or intellectual creativity or both.
(j) “Outstanding talent in the creative arts” means a child identified by the planning and placement team as gifted and talented on the basis of demonstrated or potential achievement in music, the visual arts or the performing arts.
I highlighted these norms because often people mistakenly identify talent with creativity, forgetting about the fact that the person can be gifted in absolutely opposite spheres, e.g, math, biology, sport etc.
The talent is more than expression (it is relevant mostly to writing, oral and some artistic talents), more than education (talent could exist beyond the education system at all) and more than a culture (because talents consider not only arts and cultural aspects).
Mentioned Connecticut special education law brightly divides a talent into two main components, which I strongly support:
1. talent as extraordinary learning ability;
2. and outstanding talent in the creative arts.
However, in my opinion, it is good, but still not a full differentiation. I would determine a talent more precisely: a talent in arts (writing, music, painting, etc.), a talent in sport, a talent to outstanding learning, a talent to particular sciences.
The system of special education for outstanding students exists in many other countries. And here we face with a few problems at the same time:
1) This system involves mostly healthy pupils. Inclusive education is implied only to “usual” schools. There is a very rare situation, when the state provides a special education for a talented disabled children as well.
2) The second problem may sound as: “Isn’t a special education is a discrimination within the parallels “healthy students – healthy talented students”, “talented healthy students – talented handicapped students”, “talented children – talented adults”? Is state responsible to discover a talent in everybody regardless age and a health condition, or it is normal just to develop the already found talents only in children? In other words, could the “exceptional”nature of a talent be considered as discrimination?
I think, all these questions can be the objects of the separate essays, so I will not analyse them here.
The International human rights law failed to include talents
The fact of protection of some talented people (mostly healthy children) under the national law shows the importance of this issue for society.
As I mentioned above, the talent is more than expression, education and culture. That is why it cannot be fully protected under the relevant rights in international human rights law.
The UDHR, ICCPR, ICESC do not even contain a word “talent” or relevant words (synonyms) in their provisions.
The only one respective international convention which says at least something about talents is the Convention on the Rights of Persons with Disabilities (CRPD).
Article 24 of the CRPD stated that “States Parties shall ensure an inclusive education system at all levels and life long learning directed to: … (b) the development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential”.
And this provision confused us even more.
Firstly, at the beginning of the article 24 there is a phrase “with a view to realizing this right without discrimination and on the basis of equal opportunity…”. Does it mean that the UN discriminated other people nonetheless by excluding the legal protection of talents from the UDHR, ICCPR, ICESC?
Secondly, the norm distinguishes talents and creativity, but does not explain the difference between them, neither within the Convention and the Optional Protocol to it, nor in other legal instruments, e.g. UN Resolutions.
And finally, a legislator is limiting the possibility of realization of talents only within an inclusive education system (which is also undetermined here).
I also did not find any ECtHR practice concerning the right to talent (on the ground of the article 14). Probably, this urgent problem is losing between other problems of disabled people, such as bad conditions of living, unadaptable environment (e.g., lack of ramps) etc.
However (back to the talented disabled people living in the places of detention), cannot the inability to provide all necessary conditions for development of their talents be considered as an ill-treatment? I saw such people, and may confidently say that often their talents is the only sense and consolation in their lives…
In 1986 the international community recognized the third-generation right – the right to development, adopting the eponymous Declaration. But again, its provisions are so ambiguous that “fail to provide adequate guidance on substance and boundaries” of this right.
At the same time, under the certain circumstances (such as the existence of more concrete academic and legal materials on this issue), the concept of the right to talent would perfectly fit the right to development becoming a part of it. In other words, I may only assume that the right to talent could be one of the pillars of the right to development.
No right – no protection?
Every state has three main obligations in respect to human rights: the obligation to respect, the obligation to protect and the obligation to fulfil.
Moreover, the state is obliged to behave in accordance with national law and ratified international treaties.
So, what if the right does not exist “on the paper”? What if it could theoretically be a subright of another right (in our case – the right to talent could be recognized as the subright of the right to development)? Could the assumption of the existence of the right сause the state’s obligation to fulfil, protect and respect?
In theory, perhaps. In practice, definitely not.
That is why it is vitally necessary to include the right to talent into the human rights concept and legal instruments on the international, regional and national levels everywhere. Because otherwise, all talented people will be suffering from the miserable fact – “No right – no protection”.
The right to talent should exist
The importance of the right to talent inclusion I briefly described earlier. In particular, for some disabled people a talent could be the only one opportunity to feel happy, and it is very cruel not to assist in its realization. Furthermore, exercising her/his talent(s) a person can develop a career or a private life, thus influencing the development of society in general. For instance, such people could make inventions or popularize their countries in the international level (e.g., on the Paralympics games).
So, now we have two options: to include the right to talent into the right to development as the one of its components, or to adopt it separately in the international level, e.g. in the form of Declaration.
Frankly, I am inclined to the second variant. The main reason of my choice is that the right to talent by itself has a lot of own components.
I would like to propose next elements to be included into the Declaration on the right to talent and make a few definitions within the topic.
Talent is a natural or acquired skills which distinguish a person.
The fact that it could be “acquired” allows to significantly reduce the prospective discriminatory aspect. In other words, the possibility to “acquire” talents makes equal all legal subjects of the right to talent.
The right to talent requires to be discovered, developed and maintained in accordance with a will of a person.Especially, if this person lives in the place of detention, which is fully financed by the state and are under protection of the CAT and OPCAT (mean, that in such case the state is twice more responsible, e.g., if a child has family, his parents are liable for his skills’ development and respective education; if a child lives in orphanage, the state is obliged to do the same).
Also, it is important to include the types of the talents in order to avoid a narrow interpretation of it.
For instance, as I have already mentioned, talent could consider the extraordinary learning ability or/and outstanding skills in the creative arts. Moreover, it could be: a talent in arts (writing, music, painting, etc.), a talent in sport, a talent to outstanding learning, a talent(s) in particular sciences.
Another important detail, which should be taken into consideration, is that the right to talent has its tight connections with other human rights.
E.g., when a writer uses his talent to show his protest against political regime, it becomes a part of the freedom of expression. During Stalin’s times in Soviet Union thousands of talented writers and poets were killed or expelled to Siberia because their creation “harmed” or “could harm” the Soviet communist regime. This is described, in particular, in the book of John Gordon Garrard and Carol Garrard called “Inside the Soviet Writers' Union”. All these unhuman repressions took a huge amount of the brilliant minds and even was named “The Great Purge”.
Artistic talents can be also used within performing the right to assembly peacefully. For instance, during the recent Revolution of dignity in Ukraine people played the piano in front of the fence of the armed police detachment, they song, they read poems and painted slogans and graffiti (I mean that one which were performed by the really talented persons, and I was a witness of that situation). Thus, they performed also the freedom of expression and the right to assembly here.
But the right to talent, in my opinion, is still much wider than “arts in revolutions”. And the Declaration outline, I propose here, should become an instruction for national law in all countries.
Apart from definition of the talent, the right to talent and its types, the draft of Declaration should also contain references to the freedom of expression, the right to assembly and also cultural rights, their correlation and complementarity with artistic talents.
It should be also noticed that the performance of the right to talent is extremely significant for exercising the right to development.
As we may conclude from the mentioned correlations between the rights from the first (expression, assembly), second (cultural rights) and third (right to development) generations, the right to talent has a chance to become the right of the fourth generation.
Besides, I would obligatory include into the Declaration on the right to talent the next key points:
· talent does not depend on age, health condition, nationality, sex, race, etc;
· The State is liable to provide an education aimed to identify, develop, maintain and protect talents of a child, an adult and a person with special needs (disabilities).
· The State is responsible to create all necessary conditions in the places of detention, in particular, to provide special methods of rehabilitation, the possibility to hire specialists in that discipline in which each ward is the most talented. Otherwise, lack of conditions for the development of talent сan be recognized as ill-treatment. Relevant amendments should be added to the CAT in the form of the Optional Protocol. NPM national systems are authorized to check these conditions during their monitoring visits. Special focus should be done on the most vulnerable group, disabled people (mentally and physically), because they need different conditions to discover and develop their talents.
I would notice again that the question of the right to talent is very complicated, and interdisciplinary issue. And the question whether it is a right or a freedom (every person can freely choose to perform it or not) is still open. The talent can be performed through the exercising of the right of education, but often this education is informal (trainings, workshops etc.). Which means that this element of the possibility of every person to obtain an informal education should also be included.
History knows a lot of examples when talented people were killed, expelled or just not seen (e.g., Stalin’s repression times, talented disabled people in post-Soviet countries who live in places of detention under the maintenance of their states). Could you imagine how the world would change if the situation was different?
Talented people who live in the special places of detention for disabled and mentally handicapped people are suffering more. In my practice, I faced many times with such people and it prompted me to write this essay and to do projects in the field of defence of the rights of talented people.
This essay is just an attempt to describe this problem and to assume the possible solution.
The main problem is that the right to talent is more or less protected in some developed countries (USA, Scandinavia), but in international level it is still unidentified. Talent is a missing element in the basic legal instruments such as the UDHR, ICCPR, ICESC. We find words talents and creativity in article 24 of the CRPD, but there is no explaining what it is and how to perform it.
Often a talent can be developed only through informal education which is not free of charge, thus people with a lower financial income cannot afford it. People with disabilities who, on the contrary, can afford informal education for development of their talents, often face with a problem of methods of instruction, which are designed for healthy people and cannot be applied to them. For instance, a person with Cerebral Palsy сan be talented in music, but s/he needs a special teacher. Fortunately, there are some places where disabled people can develop their skills, e.g. the Global Para-Taekwondo University in Canada. But it is rather an exception from the rule. Most states in this issue completely shifted the responsibility on the institutions of civil society.
In this essay I explained that a state cannot protect, fulfil and respect a right if it does not legally exist. No right – no protection. That is why it is vitally necessary to include the right to talent into the human rights concept and legal instruments on the international, regional and national levels everywhere, e.g., by adopting a proper Declaration.
The Declaration will be an instrument of influence on the states and guide them in the direction of improvement their national policies on the issue.
Thus, I propose to define talent as a natural or acquired skills which distinguish a person. The fact that a talent could be “acquired” reduces the discriminatory aspect and makes equal all legal subjects of the right to talent.
Besides, I determine that the right to talent requires to be discovered, developed and maintained in accordance with a will of a person.
I emphasized that talent does not depend on age, health condition, nationality, sex, race, etc; and that the State is liable to provide an education aimed to identify, develop, maintain and protect talents of a child, an adult and a person with special needs (disabilities). Moreover, the State is responsible to create all necessary conditions in the places of detention, in particular, to provide special methods of rehabilitation, the possibility to hire specialists in that discipline in which each ward is the most talented. Otherwise, lack of conditions for the development of talent сan be recognized as ill-treatment.
Thus, every person should have a chance to develop one’s skills by obtaining not only formal, but an informal education as well.
Also, if we take, for example, such target group as juvenile criminals, we would confidently say that the development of their talents can save their future. Therefore, it is advisable to create and implement, in the place of punishment of these children, special programs aimed to discover, develop and maintain their talents in accordance with their will.
The right to talent, under the circumstances described above, has its correlation and complementarity with other rights and freedoms, in particular, with a freedom of expression, the right to education, to assembly, to development and cultural rights.
Special focus should be done on the most vulnerable group, disabled people (mentally and physically), because they need different conditions to discover and develop their talents.
But, at the same time, we should be very careful with the topic of the right to talent, since everything which distinguish a person from others, under particular circumstances, can be recognized as discrimination.
Being interdisciplinary, the legal and academic discussion of the right to talent should involve experts from different fields such as law, pedagogy, psychology, social work, medicine, etc.
I understand that this topic is quite provocative and controversial, and that my essay is just an outline of the problem, but I strongly believe that implementation of the right to talent as the right of the fourth generation, in the international level, would bring positive changes into society.
In addition, the adoption of the Declaration on the right to talent will cause the positive irreversible processes in society. It will also cause the development of the cultural rights paradigm which, in my opinion, is absolutely in its embryo stage now. People will discover and develop their natural talents under protection of the state and international community. It will influence positively into the economic processes as well. And persons with disabilities will finally find their place in society by being fully integrated into it using their talents.
 A state party must establish one or several independent NPMs within one year of OPCAT entering into force or after the state party ratifies or accedes to the Protocol. The NPM can be a new national body created specifically for this purpose, or an existing body. The following are essential elements of a NPM as set out under Part IV (Articles 17 – 23) of the Protocol: a mandate to undertake regular preventive visits; independence (functional independence, independence of personnel); expertise (required capabilities and professional knowledge); necessary resources; access (to all places of detention; to all relevant information; the rights to conduct private interviews); appropriate privileges and immunities (no sanctions for communicating with the NPM; confidential information shall be privileged); dialogue with competent authorities regarding recommendations; power to submit proposals and observations concerning existing or proposed legislation.
 The network of the mentioned special places (custodial settings) includes: boarding schools of general education (including such for orphans and children with no parental care), special boarding schools of general education and educational rehabilitation centers (including such for orphans and children with no parental care), health care boarding schools, children’s homes and social rehabilitation schools of general education and vocational training; homes for elderly and disabled, geriatric and veterans’ residences, neuropsychiatric residences, special residence facilities, childcare boarding homes; psychiatric hospitals etc.
 Optional Protocol to the Convention against Torture
 Online resource: https://www.youtube.com/watch?v=rWwmVNnBiag
 Online resource: http://en.wikipedia.org/wiki/Matthias_Buchinger
 Online resource: https://www.youtube.com/watch?v=j8a9aYOn8nw
 Universal Declaration of Human Rights
 International Covenant on Civil and Political Rights
 International Covenant on Economic, Social and Cultural Rights
 Stein, Michael Ashley, "Disability Human Rights" (2007). Faculty Publications. Paper 264.
 Online resource: http://legal-dictionary.thefreedictionary.com/talent
 Online resource: http://www.oxforddictionaries.com/definition/english/talent
 Online resource: http://www.sde.ct.gov/sde/cwp/view.asp?a=2618&q=320938
 Online resource: http://www.sde.ct.gov/sde/cwp/view.asp?a=2618&q=320938
 European Court on Human Rights
 Stein, Michael Ashley, "Disability Human Rights" (2007). Faculty Publications. Paper 264.
 Online resource: http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx
 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
 Online resource: http://en.wikipedia.org/wiki/Great_Purge
 Online resource: http://www.dw.de/opinion-revolution-of-dignity-in-ukraine/a-18077223
 Online resource: http://parataekwondo.com/
1. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
2. The Optional Protocol to the Convention against Torture
3. Universal Declaration of Human Rights
4. International Covenant on Civil and Political Rights
5. International Covenant on Economic, Social and Cultural Rights
6. Declaration on the Right to Development
7. Connecticut statutes
8. Regulations Concerning State Agencies (RCSA)
9. Stein, Michael Ashley, "Disability Human Rights" (2007). Paper 264. Online resource: http://scholarship.law.wm.edu/facpubs/264
10. John Gordon Garrard, Carol Garrard. Inside the Soviet Writers' Union. I.B.Tauris Publishers, 1990
11. Online resource: http://www.sde.ct.gov/sde/cwp/view.asp?a=2618&q=320938
12. Online resource: http://legal-dictionary.thefreedictionary.com/talent
13. Online resource: http://www.oxforddictionaries.com/definition/english/talent
14. Online resource: http://en.wikipedia.org/wiki/Matthias_Buchinger
15. Online resource: http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx
16. Online resource: http://en.wikipedia.org/wiki/Great_Purge
17. Online resource: http://www.dw.de/opinion-revolution-of-dignity-in-ukraine/a-18077223
18. Online resource: http://parataekwondo.com/