Is There a Right to Untranslatability? Asylum, Evidence and the Listening State*

Sarah Craig,David Gramling

doi:10.1163/22112596-02201005

Abstract

This article focuses on Refugee Status Determination (RSD) procedures, in order to understand the relationships among language, translation / interpreting, evidentiary assessment, and what we call the ‘listening state’. Legal systems have only recently begun to consider whether adjudicative processes ought to take place in multiple languages concurrently, or whether the ideal procedure is to monolingualize evidence first, and then assess it accordingly. Because of this ambivalence, asylum applicants are often left in the ‘zone of uncertainty’ between monolingualism and multilingualism. Their experiences and testimonies become subject to an ‘epistemic anxiety’ only infrequently seen in other areas of adjudication. We therefore ask whether asylum applicants ought to enjoy a ‘right to untranslatability’, taking account of the State's responsibility to cooperate actively with them or whether the burden ought to remain with the applicant to achieve credibility in the language of the respective jurisdiction, through interpretation and translation.

Highlights

This article focuses on Refugee Status Determination procedures, in order to understand the relationships among language, translation / interpreting, evidentiary assessment, and what we call the ‘listening state’
Asylum applicants are often left in the ‘zone of uncertainty’ between monolingualism and multilingualism
The designs would categorize the ‘untranslatables’ that can arise and exacerbate a ‘zone of uncertainty’. These designs would recognize the kinds of due process protections—including a place for ‘untranslatability’—that applicants should receive in a communicative asylum process, without detracting from the rigorous approach and ‘anxious scrutiny’ required of decision makers in rsd: ‘poor losers’, who criticize the interpreter to attack an outcome they do not like, would still lose

Summary

Introduction

Is law understood to be monolingual or multilingual in 2017?2 If law is multilingual, is it passively or actively so? That is, does law speak in multiple languages, comprehend multiple languages, or both? Is evidence that has been gathered to substantiate a given legal claim only admissible and valid when it is expressed in the language of the jurisdiction? Upon whom or what institution is the burden incumbent upon to translate or otherwise render a claim recognizable to an adjudicating body? May there be claims that are for one reason or another untranslatable, but valid and substantive? Given the potentially broad impact of these questions on the lives of refugees, citizens, and claimants of various kinds, it is tempting to try to answer them with r ecourse to procedural norms and institutional strategies alone, without reflecting on more fundamental dilemmas regarding whether and how the state is responsible to listen multilingually, and how such a commitment will shape due process.[3]. Is evidence that has been gathered to substantiate a given legal claim only admissible and valid when it is expressed in the language of the jurisdiction? May there be claims that are for one reason or another untranslatable, but valid and substantive? ‘Language And Law In The European Union: The Multilingual Jurisprudence Of The ecj’ in Lawrence M Solan and Peter M Tiersma (eds),The Oxford Handbook of Language and Law (oup 2012); Emily Apter, ‘Translation after 9/11’ (2005) 2 TRANSIT ; Katrin Becker, ‘Von der Mehrsprachigkeit der Einsprachigkeit: Ein Dogmatisch-Anthropologischer Blick auf die Relation Mensch-Recht-Sprache’ (2015) 3 Critical Multilingualism Studies 90; Robert Moore, ‘From revolutionary monolingualism to reactionary multilingualism: Top-down discourses of linguistic diversity, 1794-present’ (2015) 44 Language and Communication 19; Steven Kellman, ‘Omnilingual Aspirations: The Case of the Universal Declaration of Human Rights,’ (2016) 4 Critical Multilingualism Studies 5. ‘Language And Law In The European Union: The Multilingual Jurisprudence Of The ecj’ in Lawrence M Solan and Peter M Tiersma (eds),The Oxford Handbook of Language and Law (oup 2012); Emily Apter, ‘Translation after 9/11’ (2005) 2 TRANSIT ; Katrin Becker, ‘Von der Mehrsprachigkeit der Einsprachigkeit: Ein Dogmatisch-Anthropologischer Blick auf die Relation Mensch-Recht-Sprache’ (2015) 3 Critical Multilingualism Studies 90; Robert Moore, ‘From revolutionary monolingualism to reactionary multilingualism: Top-down discourses of linguistic diversity, 1794-present’ (2015) 44 Language and Communication 19; Steven Kellman, ‘Omnilingual Aspirations: The Case of the Universal Declaration of Human Rights,’ (2016) 4 Critical Multilingualism Studies 5. 3 From the (inter)disciplinary point of view of interpreting studies, Franz Pöchhacker has noted that ‘the issue of untranslatability has received little attention in interpreting studies and has essentially been left to the philosophers of translation’ Franz Pöchhacker, Introducing Interpreting Studies (Routledge 2004) 52

Is There a Right to Untranslatability?

What Kind of Process is rsd?

Conclusions