Maestría Derecho Minero - Ambiental

URI permanente para esta colecciónhttp://hdl.handle.net/11634/56082

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Responsabilidad Fiscal y Daño Antijuridico Derivado de la Suspensión de Proyectos de Exploración y Explotación de Recursos Naturales No Renovables
(Universidad Santo Tomás, 2026-06-05) Villareal Cobos, Giovanny; Sosa Ruiz , Juan Carlos; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001333585; https://orcid.org/0000-0002-3052-7984
This research document aims to analyze the guidelines established by the Colombian Government for the implementation of the Energy Transition policy, revealing the State’s responsibility regarding the country’s fiscal situation and macroeconomic stability derived from the institutional strategies adopted, as well as the consequent obligation to compensate private parties if the existence of unlawful damage resulting from the suspension of hydrocarbon and mining-energy exploration and exploitation projects is proven. Such damage may arise from scenarios that affect legal certainty, create contractual imbalance, or undermine states of trust and legitimate expectations. The aforementioned Fiscal Responsibility is configured based on the principle of fiscal sustainability (Congress of Colombia, 2011), according to which the actions of the State, as well as the strategies and general orientations of economic, social, and environmental policy, must operate within a framework that guarantees fiscal sustainability. Therefore, if, as a consequence of the implementation of a public policy, a fiscal impact incident is evidenced—translated into a fiscal deficit and macroeconomic instability—the State infringes this framework through its fiscal management, which serves as an instrument for progressively achieving the objectives of the Social State governed by the rule of law. On the other hand, the State’s Patrimonial Liability arises when unlawful damages resulting from the suspension of projects for the exploration and exploitation of non-renewable natural resources are verified. These damages translate into harm caused to natural or legal persons—such as private contractors, investors, concessionaires, among others—which must be compensated. As explicitly stated by the Constitutional Court, “the patrimonial liability of the State in our legal system is grounded in the principle of the comprehensive guarantee of citizens’ patrimony” (Constitutional Court of Colombia, 2001). Accordingly, this research will present a set of reasoned arguments supported by legal science and legal hermeneutics that will help clarify the conflicts and tensions between the legitimate exercise of state power and the interests of natural and legal persons affected by the State’s regulatory and rule-making authority. Likewise, the study will analyze the impact of implementing the Energy Transition policy on macroeconomic variables, the fiscal deficit, upward pressures on the exchange rate, the risk premium, and interest rates, all of which may have negative effects on economic growth. It will also examine historical data (2000–2024) on fiscal revenues derived from the hydrocarbon sector, including: dividends and income taxes paid by companies that make up the Ecopetrol Group; royalties corresponding to crude oil production; the global tax on gasoline and diesel (ACPM); VAT on gasoline and diesel; the diesel surcharge; withholding tax; and fees collected by the National Hydrocarbons Agency (economic rights due to high prices; economic rights for participation in production; contractor contributions for economic rights related to the use of the subsoil; and revenues from the granting of exploration rights). Taken together, these elements will allow for a comprehensive evaluation of the economic and fiscal impact derived from the State’s actions in implementing the Energy Transition policy and the decisions to suspend and prohibit new exploration and exploitation projects for non-renewable natural resources, thereby generating a risk scenario for the country’s energy security and macroeconomic stability.
El Subcontrato de Formalización Minera en Colombia: Evaluación de su Aporte en la Formalización
(Universidad Santo Tomás, 2026-03-09) Munive Meek, Leonardo José; Velasquez Restrepo, Lucas; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0002068756
Mining in Colombia is a productive activity present in our territory since approximately the 16th century. However, in recent decades it has experienced a great boom with the large-scale exploitation and commercialization of minerals, thus demanding greater technical, environmental, and social regulation. In accordance with Article 332 of our Political Constitution, all mineral resources lying in the soil or subsoil are the property of the State, regardless of who holds the ownership, possession, or tenure of the land on which the minerals are located. However, high mineral prices have caused many miners to decide to carry out the activity without having the right to exploit and mine them, which is acquired through the signing and registration of a concession contract or any type of right acquired prior to the validity of Law 685 of 2001 (Mining Code). In many cases, they carry out mining activity within the area of a concession contract granted to a third party. In order to promote mining legalization and environmental protection, the Government issued Law 1658 of 2013, which introduced the legal tool of "Mining Formalization Subcontracting" (SFM). Therefore, keeping in mind the strategy and objective of the SFM, this article will seek to evaluate the contribution this tool has made to the country in terms of mining formalization, based on an analysis of the regulations that underpin it and existing data on the use and application of the SFM, and thus, be able to counteract the formalization data against other figures other than the SFM, with the advantages that it has provided in the mining sector.
Fiscalizar para Conservar Una Propuesta de Política Pública para el Fortalecimiento del Control Ambiental Minero en Colombia
(Universidad Santo Tomás) Karen Lorena Muñoz Cadena; Universidad Santo Tomas
Matrices Energéticas De Brasil Y Colombia, Un Enfoque En La Energía Nuclear
(Universidad Santo Tomás, 2025-11-19) Alvarado Suárez, Carlos Gabriel; Angulo Argote, Juan Daniel; Universidad Santo Tomas
The configuration of energy matrices is a key factor for security of supply, environmental sustainability, and economic development. In Latin America, Brazil and Colombia have similar natural resources—hydropower, fossil fuels, and unconventional renewables—that would allow for comparable energy trajectories. However, their policies and institutional frameworks have generated different models, especially with regard to the use of nuclear energy, which is present in Brazil but absent in Colombia. This contrast is the focus of the article, whose research question centers on how the energy matrices of both countries are composed and what role nuclear energy plays. The hypothesis is that, despite similar resources, political and economic differences explain the divergences in their energy structures. Analyzing these differences is relevant because the matrix determines the capacity to meet demand safely and the vulnerability to climatic phenomena such as El Niño, which affect hydroelectric systems. In addition, nuclear energy represents a reliable, low-carbon, high-energy-density alternative with strategic importance in the global transition. This article seeks to describe and compare the energy matrices of Brazil and Colombia, highlighting the role of nuclear energy. Specific objectives include conceptualizing the matrix and nuclear energy, detailing the composition of both matrices, and analyzing the role of this source in each country's planning. The methodology is based on a bibliographic and documentary review, supported by reports from international organizations and official entities, with a descriptive and comparative approach.
MECANISMOS JUDICIALES PARA LA PROTECCION DE LOS RECURSOS NATURALES RENOVABLES EN BRASIL
(Universidad Santo Tomás, 2025-12) LEGUIZAMON GONZALEZ, JULLY MARCELA; CORREDOR PAMPLONA, DIANA PAOLA; UNIVERSIDAD SANTO TOMAS
The Brazilian Federal Constitution of (1988) recognized the environment as a fundamental right, assigning responsibilities to both the State and society for its preservation. Based on this constitutional framework, judicial instruments such as public civil action, popular action, and environmental habeas corpus have been established, designed to safeguard renewable natural resources. However, in territories such as the state of Amazonas—rich in biodiversity but subject to strong extractive pressures—significant limitations persist that compromise the effectiveness of these legal mechanisms. This article aims to evaluate the degree of effectiveness of the judicial mechanisms provided for in the Brazilian Constitution for the defense of renewable natural resources in the state of Amazonas, using both a descriptive and analytical approach. Representative cases brought forward by citizen actors and the Public Prosecutor's Office are addressed, aimed at curbing practices such as illegal mining, deforestation, and the unlawful occupation of indigenous lands. Despite an advanced regulatory framework, the effectiveness of these legal actions is hampered by factors such as slow procedural processes, difficulties in accessing justice, and poor institutional coordination.
Inversión Térmica: Eficiencia de su prevención En San José De Cúcuta Frente a la Protección de Derechos Colectivos
(Universidad Santo Tomás, 2025-11-18) Serrano Torrado, Zulman Andrea; Sosa Ruiz, Juan Carlos; Universidad Santo Tomas
Environmental pollution is currently a determining factor within any type of society because it causes significant damage to people's health and to the structure and functions of the Earth's atmosphere. This situation has caused the authorities to impose restrictive measures in each of the affected regions, mainly against those activities that expose the population to air pollution, or that contribute to its increase. A clear example of this situation is the management of the Thermal Inversion phenomenon in the city of Cúcuta, where in order to avoid the increase of the problem, the authorities took various restrictive measures within the community, and with which several of the collective rights of people were limited and even affected, including the enjoyment of a healthy environment. In light of this, this document will seek to analyze how this phenomenon has occurred in the city of Cúcuta since 2020 and how the problem has been handled since then, thereby determining whether what has been implemented to counteract the phenomenon is due to temporary protection, or rather is the result of studies carried out focused on the direct prevention of the situation, therefore the city of Cúcuta will be compared with the management given in Medellín and Bogotá, reviewing in turn whether such measures are compatible with the Colombian constitutional position regarding the right of every citizen to enjoy a healthy environment.
EL Trabajador Minero Colombiano Frente Al Estado, Una Revisión Normativa Y Comparativa Con El Modelo Brasileño
(Universidad Santo Tomás, 2025-07-28) Alfonso Caro, Helber Eduardo; Maldonado Narváez, Marlon Iván; Universidad Santo Tomas
This article analyzes the relationship between the Colombian State and mine workers, emphasizing the normative framework that regulates their work. Through a legal and comparative analysis, it explores from the laws, such as the Political Constitution and the Mining Code (Law 685 of 2001) the State's perception of the mining worker, defining his rights and duties. The text reveals that the Colombian legal model prioritizes the concessionaire, while the mining worker remains in a situation of legal invisibility, high informality and lack of protection. A comparative analysis with Brazil is included, highlighting advances in mining labor institutions. It concludes with proposals to reform the Colombian legal framework in order to strengthen labor rights, formalization and institutional recognition of mining labor.
Vacíos Normativos En La Legislación Frente Al Uso Y Aprovechamiento De Elementos De Tierras Raras Presentes En Las Cenizas Del Carbón
(Universidad Santo Tomás, 2025-05-26) Herrera Carvajal, David Alejandro; Maldonado Narváez, Marlon Iván
This research provides a comprehensive review of the regulatory gaps in Colombian legislation regarding the use and exploitation of rare earth elements (REE) found in coal ashes—resources that have emerged as strategic assets in the current era of energy transition and digital innovation. The study is built on an in-depth analysis that spans geological, mining, and legal frameworks, arguing that although these elements are relatively abundant in the Earth’s crust, their historical low concentrations rendered economic extraction unfeasible. Technological advancements, however, have paved the way for innovative recovery methods that enhance both the concentration and profitability of REE, positioning them as key inputs for highly competitive sectors such as green technologies, defense, and telecommunications. Within this context, the research emphasizes the urgent need to establish a robust regulatory framework that not only promotes the responsible utilization of these resources but also ensures environmental security and global market competitiveness. Additionally, the study proposes strategies aimed at diversifying supply sources, reinforcing the value chain through strategic partnerships, and fostering a circular economy to guarantee comprehensive management of REE. The work aims to deliver a clear and pragmatic perspective that will guide both public policy formulation and private sector initiatives, transforming a traditionally undervalued resource into a cornerstone of the knowledge economy and technological innovation.
ACUERDOS DE BENEFICIOS COMUNITARIOS (ABC), UNA ALTERNATIVA DE NEGOCIACIÓN SOSTENIBLE PARA LAS COMUNIDADES Y LAS EMPRESAS MINERAS EN EL MUNICIPIO DE TOCANCIPÁ (CUND.)
(Universidad Santo Tomás, 2025-05-12) Rozo Vallejo, Jhon Alexander; Angulo Argote, Juan Daniel; Universidad Santo Tomás
This article was developed using a descriptive and applied methodology focused on the mining polygon of the municipality of Tocancipá (Cundinamarca), currently regulated by Resolution 1499 of 2018 from the Ministry of Environment and Sustainable Development. It provides an analysis of the economic, social, and environmental dimensions of the municipality, identifying the “benefits” of construction material extraction. Additionally, to assess the community’s perception, a Likert-type survey was conducted. The methodology of Community Benefit Agreements (ABC) is also described and proposed as a negotiation tool, prioritizing community participation in consultation tables led by the local government and coordinated with the mining sector. These agreements aim to reach pacts that commit companies to all stages of the mining cycle, ensuring compliance with recognition from the public sector. The goal is to improve the quality of life for the inhabitants of the affected area and the ecosystems it encompasses.
Exigencia De Requisitos Adicionales A Los Titulares Mineros y Proponentes Por Medio De La Resolución 100 de 2020 y La Legalidad de Estos
(Universidad Santo Tomás, 2025-02-25) Castro Castro, John Alex; Herrera, Claudia Marcela; Universidad Santo Tomás
¿Cómo Derruir la Culpa Patronal en la Actividad Subterránea de Extracción de Carbón en Boyacá?
(Universidad Santo Tomás, 2025-03-04) Monroy Mongua, Juan Fernando; González Barón, , Lina Johana
This paper condenses and clarifies the legal elements developed by the Labor Cassation Chamber of the Supreme Court of Justice, which mining employers engaged in underground coal mining in Boyacá can use as the basis for their defense strategies in civil liability lawsuits for employer fault, in which they are the passive party. This is in light of the fact that this industry has the highest rates of workplace accidents and occupational diseases in the country. The goal is for the employer to adhere to the grounds for acquittal in order to achieve a similar outcome. The strategy certainly begins by avoiding and destabilizing the establishment of the elements of the claim by the plaintiff, as an obligation imposed by the subjective liability regime outlined in Article 216 of the Labor Code (CST).
Las Sociedades de Interés Colectivo –BIC, Como Herramienta Útil para las Empresas del Sector Minero en Colombia. Una Propuesta para su Implementación en Brasil.
(Universidad Santo Tomás, 2024) Suárez Rojas, Jenniffer Liliana; Maldonado Narvaez, Marlon Ivan; Universidad Santo Tomás
This paper examines the implementation of Benefit and Collective Interest Companies (BICs) in Colombia, focusing on the mining sector, and assesses the feasibility of adapting this model in Brazil. A descriptive and analytical methodological approach is employed, including literature review, study of the Law and statistical analysis. The results show that the adoption of BIC status by mining companies represents a great opportunity to move towards more sustainable production systems. However, the uptake of this approach in the mining sector has been limited, pointing to barriers to implementation and highlighting the need for incentives for a broader transition to sustainability. The situation in Brazil, where sustainability and corporate responsibility are on the rise, represents an excellent opportunity to adopt the BIC model, and could benefit significantly from the implementation of a legal framework.

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