摘要：「建構『未／知』」計晝欲從知識社會學、批判法律研究、後結構國際關係理論等視角來探討國際人權與司法機構如何認定人權侵害之事實。國際人權研究大多採取法釋義學及歷史分析等方法來詮釋抽象規範的發展；若考慮判例、判決，也多半直接接受法院或人權機關所認定之事實，據以推論或確認相關人權之保障範圍與內涵。然而，這種取徑卻會忽視人權案件從倡議、申訴、受理到裁判是一系列動態的過程，包含多方角力與協商。其中，「證據」扮演了重要的角色——何謂證據、如何證明、是否足以認定事實、由誰提出、怎麼提出、何時提出——而認事用法者又是如何從中得出能說服各方的裁決。這些問題對於直接侵害事實較難證明的經社文權利（如健康權、教育權、勞動權等）而言，更加複雜，且由於判決數量不多而相關研究更少。 此研究中，我優先考慮由聯合國人權公約委員會（human rights treaty-based committees，HRTBC）裁定之案件，然後比較分析國際法院（International Court of Justice）針對人權侵害所作出之判決和諮詢意見的形式。而本研究主要的觀察及分析之處，在於瞭解國際人權機構關於「證據不足」之裁決，以及此類裁決對原告、他們所代表的社會群體以及相關社會運動（若有）之影響。因此，除了檔案、文本及話語分析外，亦希望能訪談人權專家與法律工作實務者，以認識其對人權侵害案件之理解：包括人權侵害相較於其他法定權利受損之案件（如民、刑、國賠案件）是否具有殊異性，該殊異性是否產生與通常證據原則相異之規則（若有，為何），且該殊異性是否真的能正當化相關認事用法的實踐方式——此外，這項理解是否因權利類型、倡議團體社會地位、起訴場域等變因，而有所不同。 也就是說，本研究旨在回應以下兩大類問題：（1）HRTBC在接受與評價不同權利侵權類型案件時是否存在差異（如涉及弱勢群體與否、是否為允許「逐步實現」之社會經濟權利等），而「證據不足」如何產生，其與案件最終決定有何關係；（2）構成人權侵害行為的證據包括了什麼（政府間國際組織、非政府組織和研究人員提供的調查、出版物、證詞和建議之作用為何），且如何、何時、由誰提出等程序性問題。其中，國際人權規範在救濟過程中人權普遍性與特殊性之間的緊張關係與潛在矛盾，又如何形塑國際人權證據制度（international human rights evidentiary regime，IHRER），尤其關於「事實認定」之權力運作、隨機性與斷裂性。本研究不僅將對國際人權研究有所貢獻，對已高度國內法化國際人權公約的臺灣也是必須認識到的部分，以加強國內人權意識之體現。
Abstract: This project considers the tension between the universalistic and particularistic accounts of international human rights (IHR) adjudication in theory and in practice, and critically evaluates the way in which ‘evidence’ has been used, weighed and/or challenged, and considered inadmissible, insufficient, and inadequate. That is, the project aims to address the question regarding the power of knowledge and ignorance functioning in the IHR evidentiary regimes, through analysing and comparing the quasi-judicial (e.g. UN human rights bodies) and judicial (e.g. international tribunals and courts) practices concerning the role of evidence in investigating and litigating the violations of different rights and against people from different communities. In this respect, it is important to draw on both sociological and critical perspectives on rights, rights-holding subjects, and knowledge, which, in combination, may offer an interpretative framework that encompasses epistemological, normative, and political parameters. Doing so, I believe, can enable this project to attend to the relationship between power and truth, which may not be easily captured by a purely doctrinal research. However, this is not to assert that a legal analysis is useless; on the contrary, it is still very important, particularly in terms of mapping out a trajectory regarding how facts and proofs have been produced, ‘curated’, and consumed (Niemi-Kiesiläinen et al. 2007). Meanwhile, it is important to also note that, a socio-legal methodology may be useful too, especially in terms of locating facts and proofs in a specific context in which a larger picture can be taken into account (Banakar, 2011), such as a particular social phenomenon, a legal change, or an institutional reform, in which violations, ‘victims’, and ‘perpetrators’ can be identified, a rights claim has been supported or obstructed, and so on. Yet, such an empirically based approach does not necessarily attend to how power works in building up and maintaining a ‘regime of truth’ – to use Foucault’s words – which shapes, standardises, normalises, and determines what can be evidenced in what way. To be more specific, in terms of a ‘critical’ perspective, I consider applying primarily the sociology of ignorance (McGoey, 2019), the sociology of nothing (Scott, 2019), and the poststructuralist approach to the nexuses between power, knowledge, and subjectivity, as well as others such as feminist, queer, crip, indigenous, postcolonial, and decolonial theories and critiques, depending on the nature and relevance of the research topic. All of them, particularly with regard to the IHR evidentiary regime, have emphasised the production, selection, and exclusion of knowledge, how knowledge is maintained as truth (or in some circumstances, subject to contestation), and the political underpinnings thereof. In this regard, I will study the cases decided by the UN human rights treaty-based committees (HRTBCs, in terms of communications and complaints) and, if viable, by the International Court of Justice (ICJ, in terms judgments and advisory opinions). Starting with a systematic examination of how evidence is used and determined by the HRTBC experts (not in the capacity of judges), I aim to identify the coherence and fragmentation concerning their approaches to defining rights, violations, reparation, and responsibility. Since the needs for rights protection may vary in different contexts, critical insights can be generated through comparing the evidentiary practices of the various HRTBCs. What is interesting are decisions regarding the (in)sufficiency and (in)adequacy of evidence and the impact of such decisions on the claimants, the social groups they represent, and social movements (if relevant). Following the systematic review, I will consider the questions such as: (1) what constitutes evidence/non-evidence for a rights violation (e.g. fact-findings, testimonies, and recommendations provided by ‘experts’, intergovernmental and nongovernmental organisations) and their justifications; (2) how evidence, if admissible, is assessed, approached, and reasoned by HRTBC members, and how it is linked to their final decisions on specific cases; and (3) whether there is a role for the UN Secretariat’s mundane activities such as documentation and involvement in evidential processes (e.g. requesting, collecting, submitting, and displaying ‘evidential materials’). Thus, this project is concerned with both the differences and commonalities between the various HRTBCs, some of which have a decades-long jurisprudential history (e.g. CEDAW), while others are relatively new and are learning from other committees while developing their own methods (e.g. CESCR). Such a comparison can broaden the horizon of the conventional comparative legal perspective, by problematising the taken-for-granted unity of the UN human rights body, which may actually be considered in a plural form. Of course, this project will benefit greatly from the comparative analyses of the three regional courts; yet, in turn, this project can also enable them to critically consider the varieties of rights, rights-holding subjects, and the socio-political contexts in which a violation of local concern is ‘regionalised’ and perhaps ‘internationalised’. Moreover, it would also be interesting to take the ICJ jurisprudence into account, exploring the differentiated treatments towards evidence concerning human rights violations between the HRTBCs and ICJ. In this regard, notable cases may include those regarding genocide (e.g. situations regarding Former Yugoslavia, Rohingya, etc.), racial discrimination (e.g. situations regarding South Ossetia, Qatar, etc.), and the right to self-determination (e.g. situations regarding Palestine, the Chagos Archipelago, etc.), and so forth. The insights will be invaluable, considering the inconsistencies between the HRTBCs and ICJ in light of their purposes (treaty monitoring vis-à-vis dispute settlement), forms (individual against state of ‘inequality of arms’ vis-à-vis state/international community versus state based on ‘sovereign equality’), and style (relatively inquisitorial vis-à-vis adversarial). Drawing on the sociological insights into ‘strategic unknowns’ and unknowability, I can explore the politics of (non)evidence and ‘truth’ inherent to the IHR evidentiary regime, through uncovering the power differentials concealed and legitimised by legal discourse and process that has selectively ‘silenced’ certain people and their victimisations (Bhambra and Shilliam, 2008). Therefore, I believe that this project, which attends to the multiplicity of the UN-related human rights adjudicatory body (including the HRTBCs and ICJ), will contribute to the new strand in Critical Legal Studies. To include the perspective of political sociology will enable us to constantly interrogate the relationship between law and politics and identify the unsolvable clashes between sovereign supremacy (legal passivism) and human rights (legal activism).