By Mark Heinrich
But, briefing the International Atomic Energy Agency's board of governors, the IAEA's top legal counsel said this did not mean Iran was in "non-compliance" with rules, a finding that could warrant further action by the U.N. Security Council.
France requested a legal opinion from the IAEA safeguards division after agency chief Mohamed ElBaradei urged Iran to unblock a stalemate arising from its failure to open up to IAEA investigations and its increasing restrictions on inspections.
A February 19 IAEA report said Iran had extended curbs on monitoring imposed in 2006 in reprisal for sanctions to barring inspectors from visiting its planned Arak heavy water reactor to verify it is being designed only for peaceful uses.
Tehran says the Arak complex will be geared to producing solely isotopes for medical care and agriculture.
Western powers fear Iran may configure the Arak reactor to derive plutonium from spent fuel rods as another possible source of bomb-grade fuel, besides its Natanz uranium enrichment plant, which is under daily IAEA surveillance.
"While construction of the reactor is still some years away from completion, this refusal to grant access adversely affects the agency's ability to ensure that no diversion pathways are built into the facility," Johan Rautenbach, head of the IAEA's legal affairs office, told the closed-door governors meeting.
"It also adversely impacts the effective and efficient implementation of verification activities once construction of the reactor, with large hot cells suitable for (fuel) reprocessing activities, is completed," he said.
"INCONSISTENT"
"This is inconsistent with its obligations under its (basic nuclear) safeguard agreement," Rautenbach added.
Iran's refusal to provide any advance design information on planned nuclear sites since last year was also "inconsistent" with subsidiary clauses to its safeguards deal agreed in 1992.
But Rautenbach said all this did not constitute "non-compliance," a finding that triggered Iran's referral by IAEA governors to the U.N. Security Council in 2006 for failing to report sensitive enrichment-related activity to inspectors.
"This should be seen in proper context," he said, saying subsidiary provisions were "broadly phrased" and scores of IAEA member states were not yet bound by them due to legal technicalities based on prior safeguards agreements.
Iran says it is refining uranium only for a civilian nuclear programme to generate electricity. But its record of nuclear secrecy and limits on non-proliferation inspections have stirred Western suspicions of an illicit quest for atomic bombs.
Iran has said that in keeping with its original safeguards agreement, it will notify the IAEA within 180 days of introducing nuclear material into any of its planned nuclear plants, including Arak.
But IAEA officials have said Iran's halting of inspections beyond its two declared uranium-processing and enrichment sites have largely blinded the watchdog to the Islamic Republic's nuclear advances, fanning alarm in the West.
The IAEA report also said Iran had built a dome over Arak, meaning satellite imagery was no longer useful in keeping an eye on what was being installed inside.
