Two or three things need definitely to be clarified here, and although the RA is always able to override (and further clarify) anything I might say we should be able to at least know where we stand.
The [url=http://www.un.org/Overview/rights.html:bljglhvw]Universal Declaration of Human Rights[/url:bljglhvw] is a philosophic treaty establishing the concept of "unalienable rights". It was set in 1948, centuries after that concept first appeared in a written Constitution, as I don't need to remind anyone here
Its preamble is rather clear on this. All member states of the UN were compelled to follow these principles, to promote them, to disseminate them, and to incorporate them in their own body of laws:
[quote:bljglhvw]"[...]it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law".[/quote:bljglhvw]
The issue here is to understand if the UDHR, by itself, constitute a "source of law". I have some issues with the definition of the words "source of law". Does it mean that the UDHR, by itself, [i:bljglhvw]is[/i:bljglhvw] law — or that all laws (and the Constitution), are [i:bljglhvw]derived[/i:bljglhvw] from applying the principles stated in the UDHR, and, naturally, any interpretation and application of the law must always conform to the rights as set by the UDHR?
Fernando states the very easy case of Spain (Portugal is exactly in the same position). Almost all constitutions written after 1948 by member states of the UN have solved this dilemma by directly embodying the rights stated by the UDHR in their constitutions — just expanding each principle and defining how it should be applied and interpreted under a judiciary system. Thus, these Constitutions are, in a sense, [i:bljglhvw]extensions[/i:bljglhvw] or [i:bljglhvw]expansions[/i:bljglhvw] of the UDHR, "codified into law". They are also almost always civil law systems, where the concept of codification, structure, framework, and guidelines make sense as the fundamental way of organising the body of laws into a coherent set.
Common law systems, or countries with pre-1948 Constitutions (which have not been thoroughly amended in any case), tend to follow a different route: they establish a "Bill of Rights" or a "Charter of Freedoms and Rights" (whatever it might be called), where all rights established by the UDHR become, [i:bljglhvw]de jure[/i:bljglhvw], laws. The reference that the courts use to apply decisions and interpretations will refer to that document instead of going directly to the UDHR, which can be "vague and conflicting". These countries' legislators have felt that human rights might be better protected using a document that embodies the spirit of the UDHR but that provides for a better clarification of what the rights stated there actually are and how they should be validated under a system of courts that needs "laws" to be applied, and not "principles".
Why wasn't this issue never raised before in the CDS? You might recall that I'm always remembering people that Neualtenburg, at its root, had up to 60 members, then declined rapidly after a period, to go up again above the 60 citizens. So it's not as if one could explain the "vagueness" of the system by saying "oh, there were only a handful of people around, so they got together well and never addressed these issues".
Rather the contrary. When it was established how our system was going to work, there were some "assumptions" for it. These resemble very likely the "unwritten code" that is common in, well, some common law legislations, but also on some legislations like the Scandinavian ones. There were some "founding principles" for the whole virtual nation. But they were not "codified". They were "written down" by luck — all discussions in and around Second Life are in written, on the forums or in-world, so much has survived from the discussion (and archived somewhere by Linden Lab and beyond our reach today, unfortunately).
One of those "assumptions" is that all human beings in the CDS have, indeed, unalienable rights. But that we did not need to set them explicitly in the Constitution — like the US had to do in their days — because we are lucky to live after 1948. We used the UDHR as our "Bill of Rights". Inspired by the way the UDHR states certain rights — the right to take part in government, the right to free elections, the right to an impartial judiciary and fair trials, etc. — the Constitution was written, establishing the [i:bljglhvw]form of government[/i:bljglhvw] that a virtual state, under the "spirit" of the UDHR, would take.
While it's undeniable that the Constitution [i:bljglhvw]is[/i:bljglhvw] law, the question might be raised if the UDHR is, or not, "law" by itself. As said, there was no reason for asking that question. All laws — and Constitution amendments — would [i:bljglhvw]always[/i:bljglhvw] follow the UDHR, and would [i:bljglhvw]never[/i:bljglhvw] violate them. That was, in fact, the role of the Scientific Council: to make sure that no law is passed that violates the UDHR or the Constitution (and that the Constitution also never violated the UDHR).
The question might arise [i:bljglhvw]now[/i:bljglhvw] if someone, for instance, claims that their right to free speech has been violated by someone else, and brings the case to court. In absence of a "Bill of Rights", or anything explicitly stating in the Constitution how to handle with violations of the right to freedom of expression, what should a decision be based upon?
In the past, the issue was easily solved — not [i:bljglhvw]de jure[/i:bljglhvw], in the sense that adequate legislation was passed; but only [i:bljglhvw]de facto[/i:bljglhvw]. By stating that the UDHR cannot be violated in the jurisdiction of the CDS, it was effectively referring to the UDHR that decisions were taken, when a human right was at stake.
All this that I'm writing now was really never "written" down It was [i:bljglhvw]assumed[/i:bljglhvw] that the model under which Neualtenburg (and now the CDS) would work was rather simple. It had a bunch of "founding documents". One establish human rights: the UDHR. One establishes the model of Government: the Constitution. A few establish ancillary rights — the Linden Lab ToS (and the CDS ToS). And one establishes the [i:bljglhvw]form[/i:bljglhvw] that the whole are put together, the "founding principles" (the original of this document, sadly, is under copyright protection which does not allow derivative works; a truly sad legacy of Ulrika's days).
It was not clear to the many amateurs (including myself) that established this model for regulating our community and virtual nation that the very [i:bljglhvw]status[/i:bljglhvw] of these documents would ever be questioned. Actually, to make sure that they would [i:bljglhvw]not[/i:bljglhvw] be questioned, it was clearly stated that [i:bljglhvw]all branches of the government are bound to serve the public before themselves and to uphold the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards without exception.[/i:bljglhvw] (from the Preamble of the Constitution)
Now, does the Preamble in fact create the "sources of law" that have been the subject of this discussion, or doesn't it? In my mind, twisted by common law systems, I always read the preamble (well, I might be accused of having participated in its writing, and thus be biased... ) as meaning: "these are the frameworks under which the CDS is effectively governed". I've chosen the word "frameworks" deliberately. Human language is always vague and imprecise; it was expected that things that were vague or inconsistent at some stage would simply be fixed on a subsequent revision that would clarify them; so if someone had doubts of how to apply "freedom of expression" to a specific case (a fundamental right established by the UDHR), legislation would be passed to clarify the case "as needed" (very much in the spirit of a common law system) and open to review under the democratic procedures of our government.
But what if there was [i:bljglhvw]no[/i:bljglhvw] legislation to apply, and no time to approve legislation for a specific case to be settled? Well, that was the prerrogative of the Philosophical Branch to decide — and thus the deliberate choice of having a "philosophical branch" which had, in fact, the arbitration/moderation powers of a Judiciary. The jurists among you might always be shocked by the immense power that the SC was supposed to have, that the SC members, as a body, could effectively apply interpretations, not based upon a literal reading of the legislation, but a [i:bljglhvw]philosophical[/i:bljglhvw] interpretation of what the legislation [i:bljglhvw]means[/i:bljglhvw] and how it [i:bljglhvw]ought[/i:bljglhvw] to be applied. Also, if no legislation applied to a specific case, one would simply fall back to the "founding documents". What do they say in this case? What is relevant?
If [i:bljglhvw]nothing[/i:bljglhvw] relevant was found to apply, the SC usually had the irritating answer back to the RA: "We don't know. Please legislate to clarify." I know I have driven poor Claude to madness in some of these cases (my public apologies for that). In effect, the SC had no "co-legislative" powers — even if many saw it like that — and not even the usual power of a common law judiciary to interpret the law as they see fit. All it did was to validate legislation and provide an interpretation according to the principles stated in the founding documents. When no such interpretation was found, the SC had nothing to report.
To conclude, while from a strictly "literalist" point of view, the UDHR is not explicitly made a "source of law", in the sense that its 30 articles are part of the Code of Law of the CDS, it definitely was established as providing a [i:bljglhvw]framework[/i:bljglhvw] for all possible and valid laws and Constitutional amendments that would ever be devised, as well as providing the required [i:bljglhvw]philosophic[/i:bljglhvw] background whenever needing to make a decision when applying a specific law, rule, act, or whatever official executive action was taken. I hesitate to call it a "[i:bljglhvw]de facto[/i:bljglhvw] source of law" because that has a very specific meaning in the jurist world, of which I'm no part of. Rather I prefer the concept of a framework, a guideline, and a "founding document". It means it cannot be ignored by any CDS official holding a public office. In fact, every CDS official is mandated to [i:bljglhvw]uphold[/i:bljglhvw] it, [i:bljglhvw]all the time[/i:bljglhvw], and failing to do that, as Fernando has mentioned, is very likely a gross dereliction of duty.
I have only to echo Fernando on this. In my mind, there is no alternative explanation. The Constitution was written having the UDHR in mind; the UDHR is a set of principles even more precious than the Constitution itself. I cannot say, as Beathan says, that the UDHR is the "first and ultimate law" in the CDS, but I can definitely say that it is the first and ultimate [i:bljglhvw]set of principles[/i:bljglhvw] that should govern all our procedures and laws.