Derecho · 2026

La propiedad privada frente a la presunción uniforme del interés general en la Declaratoria de Utilidad Pública e Interés Social (DUPIS) y su ponderación en la expropiación minera en Colombia

This monograph examines the Declaration of Public Utility and Social Interest (DUPIS) in the colombian mining industry, established by Article 13 of Law 685 of 2001 (Mining Code), which uniformly attributes the condition of public utility and social interest to all mining activity, thereby enabling the imposition of easements and the expropriation of private property without distinction based on the type of mineral, the scale of the project, or the purpose of the exploitation. Through a historical analysis of the colombian mining regime from colonial patrimonialism and regalism to the consolidation of the current concession-based model the constitutional foundations of extractive activity and the instruments for limiting private property rights are identified. The research applies the principle of proportionality, following the theoretical framework of Robert Alexy and Carlos Bernal Pulido, to demonstrate that the uniform presumption of general interest generates legal asymmetries by equating projects with substantially different degrees of collective benefit. A graduated approach to the public interest is proposed, based on the strategic relevance of the mineral, the intensity of social return, and the proportionality between the burden imposed on the property owner and the effective benefit to society. The study is complemented by a comparative law analysis with the United States of America, following the methodology of Mauro Cappelletti, which shows that an automatic declaration of public utility is not an indispensable condition for mining development, and that the colombian legal system can move toward an individualized balancing model that ensures the effective protection of property rights without disregarding the general interest of extractive activity.

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