113. The Complainants argue that the requirement that any encroachment on property rights be in accordance with the“appropriate laws” must also include relevant international laws. They argue that the Respondent State, including the courts, has failed to apply international law on the protection of indigenous land rights, which includes the need to recognise the collective nature of land rights, to recognise historic association, and to prioritise the cultural and spiritual and other links of the people to a particular territory. Instead, Kenyan law gives only limited acknowledgement to African customary law. The Trust Land system in Kenya provides in reality only minimal rights, as a trust (and therefore African customary law rights, such as those of the Endorois) can be extinguished by a simple decision of the executive. They argue that the crucial issue of recognition of the collective ownership of land by the Endorois is not acknowledged at all in Kenyan law, as is clearly shown by the High Court judgment. Encroachment on the Endorois’ property did not therefore comply with the appropriate international laws on indigenous peoples’ rights. They state that the Endorois have also suffered significant property loss as a result of their displacement as detailed above, including the loss of cattle, and that the only “compensation” received was the eventual provision of two cattle dips, which does not compensate for the loss of the salt licks around the Lake or the substantial loss of traditional lands. 114. They conclude that the fact that international standards on indigenous land rights and compensation were not met, as well as that provisions of Kenyan law were ignored, means that the encroachment upon the property of the Endorois community was not in accordance with the “appropriate laws” for the purposes of Article 14 of the Charter. Alleged Violations of Articles 17(2) and (3) – The Right to Culture Article 17(2) and (3) states that: (2) Every individual may freely take part in the cultural life of his community. (3) The promotion and protection of morals and traditional values recognised by the community shall be the duty of the State. 115. The Complainants argue that the Endorois community’s cultural rights have been violated as a result of the creation of a game reserve. By restricting access to Lake Bogoria, the Kenyan authorities have denied the community access to a central element of Endorois cultural practice. After defining culture to mean the sum total of the material and spiritual activities and products of a given social 37 group that distinguishes it from other similar groups, they argue that the protection of Article 17can be invoked by any group that identifies with a particular culture within a State. But they argue that it does more than that. They argue that Article 17 extends to the protection of indigenous cultures and ways of life. 116. They argue that the Endorois have suffered violations of their cultural rights on two counts. In the first instance, the community has faced systematic restrictions on access to sites, such as the banks of Lake Bogoria, which are of central significance for cultural rites and celebrations. The community’s attempts to access their historic land for these purposes was described as “trespassing” and met with intimidation and detention. Secondly, and separately, the cultural rights of the community have been violated by the serious damage caused by the Kenyan Authorities to their pastoralist way of life. 117. With mining concessions now underway in proximity to Lake Bogoria, the Complainants argue that further threat is posed to the cultural and spiritual integrity of the ancestral land of the Endorois. 118. They also argue that unlike Articles 8 and 14 of the African Charter, Article 17 does not have an express clause allowing restrictions on the right under certain circumstances. They state that the absence of such a clause is a strong indication that the drafters of the Charter envisaged few, if any, circumstances in which it would be appropriate to limit a people’s right to culture. However, if there is any restriction, the restriction must be proportionate to a legitimate aim and in line with principles of international law on human and peoples’ rights. The Complainants argue that the principle of proportionality requires that limitations be the least restrictive possible to meet the legitimate aim. 119. The Complainants thus argue that even if the creation of the game reserve constitutes a legitimate aim, the Respondent State’s failure to secure access by right for the celebration of the cultural festival and rituals cannot be deemed proportionate to that aim.