Myanmar: Human Rights Analysis of Biometric Digital ID Systems 2(2) of the International Covenant on Social, Economic and Cultural Rights, which Myanmar has ratified, stipulates that social, economic and cultural rights should be “exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”9 Discrimination refers to differential treatment, based on a specific prohibited ground, such as race or religion, which impairs the recognition, exercise or enjoyment of human rights or social benefits or entitlements, such as a job. Differential treatment will be considered to be discriminatory unless it can be justified as being reasonable and objective.10 To be considered reasonable and objective, the differential treatment must have a legitimate basis that is compatible with human rights standards and has the sole purpose of promoting the general welfare in a democratic society. The effect of the differential treatment must also be proportionate in the sense that the benefits flowing from are greater than the harm it causes to equality.11 States are obliged to take measures to eliminate both direct and indirect or systemic discrimination. Direct discrimination “occurs when an individual is treated less favourably than another person in a similar situation based on a prohibited ground.”12 Indirect discrimination, on the other hand, refers to laws or implementation which appear to be neutral in nature but which differentially impact certain groups identified by reference to a protected ground.13 In the context of legal ID systems, direct discrimination may arise if ID documents are denied to certain persons based on a protected ground, either under the law or through implementation. Indirect discrimination would arise if the ID system disproportionately fails to work in practice for certain groups due to characteristics relating to their group membership. Digital ID systems, for example, may indirectly discriminate against the poor, who typically have less digital literacy and access to technology.14 In this case, where digital IDs become widely used as a means of verification for accessing social services, financial services, voting or other basic services, a lack of access to them can have a cascading discriminatory impact. Difficult and challenging questions are raised by ID systems which contain information about race, religion, ethnicity or other protected grounds, which may then serve as a basis for discrimination. Including such information can facilitate discrimination by making such groups easy to identify, Discrimination, General Assembly Resolution 2106 (XX), 21 December 1965, in force 4 January 1969; Convention on the Elimination of All Forms of Discrimination against Women, General Assembly Resolution 34/180, 18 December 1979, in force 3 September 1981; and Convention on the Rights of Persons with Disabilities, General Assembly Resolution 61/106, 13 December 2006, in force 3 May 2008. 9 UN General Assembly Resolution 2200A (XXI), 16 December 1966, in force 3 January 1976. 10 Committee on Economic, Social and Cultural Rights, General Comment 20, 2 July 2009, U.N. Doc. E/C.12/GC/20, para. 13. Available at: https://www.refworld.org/docid/4a60961f2.html. The same “reasonable and objective” language is also used in deciding whether differential treatment is permissible under the nondiscrimination provisions of the ICCPR. See Human Rights Committee, General Comment No. 18, 10 November 1989, para. 13. Available at: https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/INT_CCPR_GEC_6622_E.doc. 11 General Comment 20, ibid., para. 13. 12 General Comment 20, ibid., para. 10(a). 13 General Comment 20, ibid., para .10(b). 14 Special Rapporteur on Extreme Poverty and Human Rights, Report submitted in accordance with Human Rights Council Resolution 35/19, 11 October 2019, para. 45. Available at: https://undocs.org/A/74/493. -3-