Medidas administrativas con efectos expropiatorios en Colombia: el caso de los contratos de concesión minera

Abstract

The purpose of this paper is to determine whether rights that derive from a mining concession are protected when governmental measures, that are not expropriatory per se, are adopted; but that nevertheless encroach upon the rights that derive from a mining concession. To this end, this article conducts a general study of the concepts of private property, acquired rights, and their social and environmental functions, based on a review of scholarly research and the case- law of the Corte Constitucional (Constitutional Court) and the Consejo de Estado (Council of State). In particular, this paper analyses how the social and environmental functions of property can be pursued with government measures that are not expropriations, and which thus affect private property or acquired rights indirectly. The State’s regulatory activity has affected the rights that derive from mining titles, limiting the title holders’ rights, without a previous formal expropriation procedure nor an indemnity. The paper concludes that the protection of these rights under Colombian law, implies, for the title holder, the costly procedure of resorting to administrative litigation to seek compensation, which goes against the general interest of the State and the rights of the title holder.