69 erase the Rohingya identity and deprive Rohingya of equal nationality rights. The Government of Myanmar has also failed to identify a legitimate purpose for restricting Rohingya rights to nationality, and the restrictions are neither narrowly construed nor proportionate to justify the loss. Therefore, the process is also arbitrary. Moreover, both the 1982 Citizenship Law and the NVC process have led to situations of statelessness, contravening international law.271 THE PRINCIPLE OF NON-DISCRIMINATION The principle of non-discrimination is protected under customary international law and is included in almost all core international human rights instruments.272 It is considered a fundamental right that all States are legally bound to uphold.273 The principle of non-discrimination, as defined by the U.N. Human Rights Committee, includes: [A]ny distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.274 In general, discrimination requires demonstrating: (1) unfavorable treatment; (2) based on one or more protected grounds; and (3) without a legitimate aim.275 By meeting these three requirements, the 1982 Citizenship Law and the NVC process can be shown to violate the principle of non-discrimination. In examining whether unfavorable treatment has occurred, human rights bodies look to both intentional or purposeful discrimination as well as discrimination manifested through the disparate impact or effect of facially-neutral laws or regulations.276 Prior to the enactment of the 1982 Citizenship Law, Rohingya had access to citizenship in Myanmar and all the benefits of citizenship.277 As stressed above, following the law’s enactment, Rohingya 271 U.N. Secretary General, Guidance Note of the U.N. Secretary-General: The United Nations and Statelessness, June 2011, p. 3, (“States must make every effort to avoid statelessness through legislative, administrative and other measures.”) https://www.un.org/ruleoflaw/files/FINAL%20Guidance%20Note%20of%20the%20Secretary-General%20on%20 the%20United%20Nations%20and%20Statelessness.pdf (accessed August 23, 2019). 272 UDHR, Art. 2; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), U.N. Doc. A/6316, not ratified by Myanmar, arts. 4(1), 20(2), 24(1), and 26; ICESCR, Art. 2(2); Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), adopted December 10, 1984, G.A. Res. 39/46, U.N. Doc. A/39/51, not ratified by Myanmar, Art. 1(1); ICERD; CEDAW; CRC, arts. 2(1) and 2(2). See also, for example, U.N. General Assembly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N. Doc. A/36/684, November 25, 1981, para. 3. While not a binding legal instrument, this Declaration reflects global consensus on standards for freedom from discrimination on the basis of religion and notes the legal burden on states to prevent discrimination on the basis of religion and reaffirming, inter alia, such discrimination “constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations and shall be condemned as a violation of the human rights.” 273 International Law Commission, State Responsibility: Articles and Commentaries, Commentary to Draft Article 26, June 9, 2001, para. 5 (stating, “peremptory norms that are clearly accepted and recognised include the prohibition of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.”) http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001. (accessed August 23, 2019). 274 Human Rights Committee, General Comment No. 18: Non-discrimination, U.N. Doc. HRI/GEN/1/Rev.9, November 10, 1989, para. 7. 275 Ibid. CERD, General Recommendation 14: Definition of Racial Discrimination, U.N. Doc. No. A/48/18, 1993, (explaining that: “In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.”) This approach is also followed by other human rights bodies. 276 CERD Committee has explained that making purposeful distinctions based on race or ethnicity will constitute direct discrimination, while indirect discrimination occurs when an action “has an unjustifiable disparate impact upon a group distinguished by” race or ethnicity. Ibid. 277 UNHCR, Citizenship and Statelessness Myanmar.