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Ugly Trade

January 22, 1986

A global traffic in stolen works of art is causing justifiable alarm among art historians and archeologists. A ready market, created by collectors whose financial resources are greater than their ethical sensitivities, fuels thefts and encourages the pillage of historic sites, often depriving scholars of the crucial knowledge that comes from careful, supervised, scientific exploration of archeological sites.

Much of the traffic is targeted at the United States, creating a situation that calls out for clearer regulations that will both deter the thieves and protect the great museum collections from unreasonable claims. Congress is responding to the problem, considering legislation to change the rules for recovering stolen works of art. Unfortunately, the remedies now before Congress are far worse than the problems that they are intended to cure.

There is at present no federal legislation dealing with the recovery of art of disputed origin. The only federal law on the subject supports the excellent UNESCO Convention by creating an advisory commission within the U.S. Information Agency that is now ready to review requests of foreign nations that the importing of certain art forms be barred. But that deals with the future, and does nothing to settle the claims stemming from plunder in the past.

Sen. Charles McC. Mathias Jr. (R-Md.) has introduced a bill that would create a federal statute of limitations severely restricting the ability of foreign nations to recover art works removed from them in violation of their domestic laws. The restrictions proposed are so severe that they would, in the words of a spokesman for the Department of Justice, make the United States "a pirate's cove." The State Department and the U.S. Information Agency have joined the Justice Department in opposing the Mathias bill, and so they should.

The opposition of the Reagan Administration is motivated in part by its ideology. Officials say that they don't like to see the federal government moving into an area until now controlled by the states. That is not a persuasive argument. The hodgepodge of state laws creates a nightmare for museums and legitimate collectors, and a safe haven of a sort for less scrupulous collectors. The conspicuous defects in the Mathias proposal call for improvement, not rejection of the bill.

In one of the states, California, there already is legislation that is a model for what the federal government should do. It addresses the basic need for prompt and decisive settlement of disputes, but, unlike the Mathias bill, does not create a sanctuary for stolen art or artifacts of dubious origin. California has a three-year statute of limitations, but it does not begin to run "until the discovery of the whereabouts of the art or artifact by the aggrieved party, his or her agent or the law-enforcement agency which originally investigated the theft." Fair enough. And the principle has been upheld in a celebrated New York case.

There is a second step that the federal legislation should take to facilitate recovery: a central registry of all acquisitions. The J. Paul Getty Museum, for example, publishes and widely distributes an annual list of all acquisitions. But there are hundreds of small museums whose catalogues are not readily available to someone on the lookout for missing art works.

The Mathias bill would prohibit recovery action against any art object that had been in the United States for five years before the adoption of the law. That would unfairly protect a vast quantity of art works of controversial patrimony. It also would bar recovery after 10 years unless the nation bringing the action could prove that the "United States holder acquired the item with actual knowledge that it had been removed from the possession of the country of origin in violation of the law of the country of origin." That would only encourage the practice among some collectors of asking no questions.

Many museums are supporting the Mathias bill out of anxiety about the threat of spreading litigation. Their fears appear exaggerated. Peru has proposed action to recover all of the pre-Columbian treasures removed from its territory over the last half-century, but not a single claim has been filed. Romania is in litigation with the Kimbell Art Museum in Fort Worth to recover an El Greco bought from a Swiss dealer who acquired it from the family of the former king of Romania--the very sort of dispute that should go to trial. But those are rare instances of actual or threatened court tests.

The threat of widespread litigation and the risk of uncertainty to collections would be cured by the more precise and balanced provisions of the California law. Its provisions are adequate to discourage the ugly trade in contraband art while respecting the importance of encouraging museums to hold collections representing the art of other nations.

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